LawTalk 927 by New Zealand Law Society

ISSUE 927 · April 2019

PA S S I N G THE TORCH

New Zealand’s new Chief Justice and Law Society President

The Government's lawman: David Parker, Attorney General

The Viagogo case

Harmful Digital Communications

A rare honour: Queen's Counsel in New Zealand

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Page 42

Page 46

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6 · Building a legacy of understanding and aroha ▹ BY SAMUEL HOOD

68 17

8 · New Zealand Law Society 14 · The President of the New Zealand Law Society

The justice system

21 · Celebrating two Chief Justices ▹ BY GEOFF ADLAM 24 · New Zealand’s judiciary at 14 March 2019 ▹ BY GEOFF ADLAM

People In The Law

35 · The Government’s lawman: David Parker, AttorneyGeneral ▹ BY CRAIG STEPHEN

88 68

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40 · Can-ada we do? Yes, says campaigner as NZ prepares way for disability legislation ▹ BY CRAIG STEPHEN 42 · The Viagogo case ▹ BY JOHN LAND 46 · Harmful digital communications ▹ BY TARYN GUDMANZ 49 · Accredited employers, the current policy, proposed policy changes and ‘what’s next?’ ▹ BY MAHAFRIN VARIAVA 52 · Strata / Units and Urban Development ▹ BY THOMAS GIBBONS

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Contents

Alternative Dispute Resolution

Practising Well

Legal information

54 · Dispute prevention: using mediation as a business tool ▹ BY PAUL SILLS 56 · How to pick a mediator ▹ BY CAROLE SMITH

64 · Talking about mental health: start a mental health movement in your workplace ▹ BY SARAH TAYLOR 67 · Proactive rather than reactive ▹ BY ANGHARAD O'FLYNN

Legal research

Practice

57 · Taking a break to secure our future ▹ BY LYNDA HAGEN 58 · The Borrin Foundation: Making a difference to New Zealand, through the law ▹ BY MICHELLE WANWIMOLRUK

70 · The Gender Equality Charter: What role can the In-house legal community play? ▹ BY CAROLINE SIGLEY 72 · Queen’s Counsel in New Zealand ▹ BY GEOFF ADLAM

Lifestyle

90 · Tail

Access to justice

60 · The work of in-house lawyers at New Zealand’s unions ▹ BY CRAIG STEPHEN 63 · The firm that represents unions – and employers ▹ BY CRAIG STEPHEN

Future of law

80 · Some recent legal books ▹ BY GEOFF ADLAM

Classifieds 82 · Will notices 83 · Legal Jobs 85 · CPD Calendar

88 · A New Zealand Legal Crossword ▹ SET BY MĀYĀ 89 · The Irish R.M.: Justice a mere sideline in historical magistrates series ▹ BY CRAIG STEPHEN

end

75 · Taking law and technology teaching to all students ▹ BY LYNDA HAGEN 77

Complaints decision summaries

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B U I L D I N G A L E G A C Y O F U N D E R S TA N D I N G A N D A R O H A

Building a legacy of understanding and aroha BY SAMUEL HOOD

I first met Dr Mustafa Farouk at the Hamilton Mosque in 2004. I was a newly minted lawyer, having recently relocated to Hamilton after two years as a Christian missionary in Japan. A chance meeting with a client, Ali Issa, had led to an invitation to attend the Mosque and participate in the breaking of the fast with the Muslim community during Ramadan. Mustafa was the first person to greet me at the Mosque. He wanted to know my background and soon learnt that I worked for Tom Sutcliffe, a prominent Hamilton lawyer. Mustafa spoke warmly of his involvement with Tom in certain interfaith social initiatives. That evening began a personal journey of learning, enlightenment and enrichment. Friendships quickly grew, leading to opportunities to engage with the Muslim community at community events, weddings and in their homes. Our religious differences were inconsequential. Our cultural differences were enriching and even humorous – like the time I phoned Ahmed Ahmed and asked him to help me move a “shed”. Something We now have an was lost in translation, since Ahmed unprecedented came to my property with a knife, opportunity (and looking for the “sheep” he thought responsibility) to I wanted butchered. extend the hand It was my privilege to become of friendship a de facto lawyer for the Waikato to the Muslim Muslim community. In this unofficommunity, both cial capacity, I learnt of some of the in the immediate challenges they faced with daily life aftermath of the in New Zealand. In my experience, Mosque massacres acts of overt racism were infrequent. and in the years However, many Muslims face some to come. 6

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▸G overnor-General of New Zealand, Dame Patsy Reddy, lays flowers for the victims of the Christchurch mosque shootings at Hagley Park. Photo by Government House cb

type of prejudice on a regular basis, often in the form of unconscious bias. I’m aware of Muslims being subjected to excessive racial profiling from prominent financial institutions. Even my friend Ali Issa lost his taxi company because the media irresponsibly reported a bogus rape complaint against a Somali taxi driver. No one seemed to care that Ali is from Djibouti, not Somalia. In 2005, the phones simply stopped ringing. Even as recently as a month ago, I learnt that certain Muslim employees have been prevented from praying in their workplace by middle management. In my experience, the biggest challenge faced by the Muslim community is not acts of overt racism. Rather, it’s knowing how to engage with the general public. Certain outgoing and visionary members of the Muslim community, like Ali and Mustafa, excel at building bridges. However in my experience, many Muslims do not know where to turn, despite their best intentions. This then leads to the unfair perception that the Muslim community is reclusive. This perception is born of ignorance. It is the same ignorance which, in its most extreme form, led to the unprecedented act of violence against the Muslim community (and all humanity) in Christchurch on 15 March 2019. Fifteen years after first meeting Mustafa, I saw him speak to media in the immediate aftermath of the Mosque massacres. As President of the Federation of Islamic Associations New Zealand, Mustafa spoke calmly of the impact of the terrorist attacks on the victims and their families. Mustafa’s words were not of anger or blame, although that perhaps would have been understandable in the circumstances. Instead, Mustafa expressed his concern for the impact of the terrorists’ actions on the country we love. He also said that the attacks: “Do not change my opinion about New Zealand

P E O P L E I N T H E L AW · O N T H E M O V E

being one of the best places on earth to live, it was just unfortunate that one person decided to commit such an act in this beautiful country.” Mustafa’s words and actions reflect the words and sentiments of all Muslims I have met. They are peaceful people and proud New Zealanders. On the night of the Christchurch massacres, our Prime Minister said: “We were not chosen for this act of violence because we condone racism, because we’re an enclave for extremism, we were chosen for the very fact that we are none of these things, because we represent diversity, kindness, compassion, a home for those that share our values, a refuge for those who need it.” I endorse the Prime Minister’s sentiments. However in my experience, we are sometimes guilty of being an enclave of ignorance. The most extreme, and fortunately infrequent symptom of ignorance is racism. However, more often than not, the ignorance I have encountered is simply a lack of familiarity with, and understanding of, the Muslim community. In the immediate aftermath of the mosque massacres, the foundations of this ignorance have been shaken to the core. We have witnessed a tremendous outpouring of love, grief and support for the Muslim community. The Muslim community has, in turn, opened its doors physically and metaphorically to the public. Non-Muslims now have a golden opportunity to build

bridges with the Muslim community and to strengthen our relationship with them. We should continue to provide all the support we can, whether it be flowers, financial assistance, or heartfelt messages. However, the action that will bring about the most lasting change, is the gift of whanaungatanga, a relationship through shared experiences and working together which provides people with a sense of belonging. When the terrorist entered the Masjid Al Noor Mosque and fired his first rounds in the name of ignorance and racism, I doubt he ever paused to consider that his actions would have the exact opposite effect – that his wanton destruction of human beings because of their religion and ethnicity, would rattle the very ignorance and hatred that he stood for. I am proud of our response to this tragedy. We now have an unprecedented opportunity (and responsibility) to extend the hand of friendship to the Muslim community, both in the immediate aftermath of the mosque massacres and in the years to come. As lawyers, we are in a unique position to lead the bridge building efforts with the Muslim community. Our individual and collective actions will ensure that the lasting legacy of the 15 March tragedy is not ignorance and hatred, but understanding and aroha. ▪ Samuel Hood, Managing Partner, Norris Ward McKinnon, Hamilton. 7

N E W Z E A L A N D L AW S O C I E T Y

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NEW ZEALAND LAW SOCIETY

Complaints lodged against lawyers show increase In the year to 30 June 2018, 1,581 complaints were lodged with the Lawyers Complaints Service. This was up 11.4% on the 1,419 complaints lodged in the previous year. Complaints against practising lawyers made up 93% of all complaints received, while 42% of complaints were lodged by clients or former clients of lawyers. This is shown in the latest Annual Report of the New Zealand Law Society, which was tabled in Parliament last month. The full report is available on the Law Society website at News & Communications/Annual Reports. During the year to 30 June 2018, 1,319 complaints were resolved and closed. Of these, 82% were not upheld. When complaints which were resolved by negotiation, conciliation or mediation are included, plus those which were withdrawn, 87% of complaints which were investigated and resolved in the 2017/18 year were not upheld. The report says complaints of breach of the Rules of Conduct and Client Care, overcharging and negligence/incompetence are consistently the matters most frequently complained about. Complainants may complain about more than one matter, meaning the total number of types of complaints exceeds the actual number of complaints made. Between February and 30 June 2018 (the end of the reporting period), lawyers standards committees received 14 separate complaints or reports alleging sexual harassment or other unacceptable behaviour by members of the legal profession. ▪

Complaints resolved and closed, year to 30 June Result

2018

2017

2016

Not upheld – no further action

1072

1102

1253

116

Negotiation, conciliation or mediation Withdrawn, discontinued or settled

Orders made by standards committee

183

170

Complaints outstanding at 30 June

779

516

564

1319

1467

1595

2018

2017

2016

Breach of Conduct & Client Care Rules

581

522

360

Overcharging

407

375

365

Negligence / Incompetence

395

436

395

Inadequate reporting / Communications

346

304

255

Misleading conduct

197

175

122

Conflict of interest

177

167

153

Discourtesy

166

187

153

Delay

165

152

147

Failure to follow instructions

118

120

128

Other conduct issues

105

355

Lack of supervision

Unbecoming conduct

Not compliant with LC Act / Regs

104

Acting without instruction

Complaints closed during year

Most common types of complaint made to Lawyers Complaints Service, year to 30 June Type

healthy Mind healthy Body healthy Practice lawsociety.org.nz/practising-well 8

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N E W Z E A L A N D L AW S O C I E T Y

Origin of complaints received by Lawyers Complaints Service, year to 30 June Origin

2018

2017

2016

Client/former client

662

661

769

Client – other side

255

235

289

Other

114

Lawyer

116

NZLS own motion

115

100

Third party

240

154

Beneficiary

119

103

1581

1419

1459

Regulatory authority Total

Direction of complaints received by Lawyers Complaints Service, year to 30 June Direction of complaint

2018

2017

2016

Against lawyers

1470

1331

1363

Against non-lawyer employees

Against former lawyers

Against incorporated law firms

Against former non-lawyer employees

Against former incorporated law firms

1581

1419

1459

Total

Law Society to be custodian of Law Foundation records The Law Society will be custodian of the Law Foundation’s records until it is ready to re-launch. This follows the announcement by the Foundation that it is to go into recess to allow its funding base to rebuild. The Foundation’s last funding round will be in June 2020. The Law Society will also take back administration of the Cleary Memorial Prize. “The Law Foundation has been a major force in New Zealand legal research since 1992. Many aspects of our justice system have benefitted greatly from grants it has made,” Law Society President Kathryn Beck said on the announcement of the recess. “The Foundation has often taken an innovative and imaginative approach to research proposals and has not been afraid of making major contributions to ground-breaking projects. The Law Society appreciates the reasons behind this decision.” ▪

Preservation of fair trial process essential when assessing victim rights Moves to improve victims’ experience of the criminal justice process must always come in the context of ensuring a fair trial process for anyone charged with a crime, New Zealand Law Society Criminal Committee convenor Steve Bonnar QC says. Commenting on the release by Chief Victims Adviser Kim McGregor of the results of a survey of victims of crime, Mr Bonnar says it is important to recognise that our criminal justice system is based around the premise that anyone tried for a crime is brought to court on behalf of the community. “A criminal case is fundamentally between the community and the alleged offender; not the victim and the alleged offender. It is, of course, important that victims are heard and their views heeded, but we have to remember that the whole purpose of a criminal trial is to determine the guilt or otherwise

of the defendant; it is not about vindicating the alleged victim. “It is clear that the criminal justice process is not very well equipped to provide a resolution or healing process for victims of offences. Dr McGregor’s research and the views of victims make this clear. But we need to recognise that this is not the principal purpose of the criminal justice system and its trial process – which is to determine if a crime has been committed and, if so, to bring the offender to account.” Mr Bonnar says it is important for there to be a focus on improving the processes in our criminal

justice system for all participants. “At the heart of the criminal justice system are the rights of all defendants to a fair trial. That has always been paramount and must remain so. “The research and comments from several quarters make it clear there is a call for ways of improving support for victims of crimes. That is a laudable aim. But the answers may lie outside the actual criminal trial processes. There are long-established rights at the centre of the justice system and it is essential that these stand paramount.” ▪ 9

N E W Z E A L A N D L AW S O C I E T Y

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NEW ZEALAND LAW SOCIETY

Better protection for death penalty prisoners supported May symposium will focus on culture change A one-day symposium in Wellington on 14 May will focus on ways of changing the culture of legal workplaces. It’s the first major initiative of the Law Society’s Culture Change Taskforce. The event will bring together around 150 members of the wider legal community, along with experts on culture, transformational change, power systems and other measures that will assist in creating new ways of thinking and operating in legal workplaces. Some of the broader themes that will be discussed include what it takes to change the systems and culture of a community, the particular issues facing the legal community and causative factors and possible solutions for these. Taskforce chair Kathryn Beck says a diverse range of people from a range of organisations have been invited to participate. “This is an excellent opportunity to bring people together with the common purpose of working on the best ways to effect cultural and systemic change,” she says. The 20-member taskforce has been meeting regularly since the end of last year. One of the themes members have focused on is the vision for the future. What does a healthy, safe, just, respectful and supportive legal community look like? How does it feel to those in it? Especially to those who have just joined? “The taskforce has been thinking critically about our current culture; the underlying beliefs and assumptions, our espoused values and the drivers that result in the issues we currently face. We have been soul searching and having frank conversations around understanding what is driving some of the unacceptable behaviour and work environments.” Ms Beck says. The taskforce is required to deliver a draft strategy and action plan to the Law Society by 30 November 2019. “The symposium will be a key touch point along the way to developing a strategy that we hope will sustain the legal community long into the future,” Kathryn Beck says. The symposium will be held at Pipitea Marae in Thorndon, Wellington and will include sessions that are open to the media. ▪ 10

The New Zealand Law Society has joined lawyers’ organisations around the world in calling for the drafting and adoption of standards to ensure better protection for death row prisoners. The Law Society’s Board agreed that the Law Society support a resolution which called on all lawyer organisations to assist in upholding and advocating for measures such as free and competent legal aid, improved access rights and protective measures for prisoners sentenced to death. The initiative organised by the Paris Bar, Ordre des Avocats at la Cour de Paris, was a side event to the seventh World Congress against the Death Penalty, in Brussels from 26 February until 1 March. The resolution recognises that professional associations of lawyers have a vital role to play in advocating for the abolition of the death penalty and the establishment of a moratorium on it. Lawyers are one of the main safeguards for ensuring the effectiveness of the rule of law, and the proper administration of justice; and the role of lawyers, as protectors of prisoners’ human rights, is especially important in the case of death penalty prisoners.

The text of the resolution: “Call upon Bars and professional lawyers’ organisations from all countries, both abolitionist and retentionist [of the death penalty] to: “Uphold respect for the minimum judicial and due process guarantees, without discrimination, for all those facing the death penalty. Such guarantees must include, in particular, the categorical rejection of confessions obtained through torture; access to professional and good quality interpretation at all stages of judicial procedure; and the principle of free and competent legal aid services at all stages of judicial procedure. “Defend respect for detention and treatment conditions for death row inmates that preserve human dignity and fundamental rights; including particularly by ensuring access to medical and health services from the outset of detention; access to the outside world; effective access to consular protection for foreign prisoners; and to address the use of solitary confinement, which should not be automatically and systematically imposed simply by virtue of the imposition of a death penalty. “Participate in international advocacy for the drafting and adoption of additional and specific standards that can ensure better protection for death row prisoners across the world, and to obtain recognition, in their favour, of specific guarantees related to the specific particular vulnerabilities of death row inmates.” ▪

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Law Society outlines ways to reduce Family Court delays A significant reduction in delay in the Family Court could be achieved by implementing a number of measures, the New Zealand Law Society says. Details of the measures are provided by the Law Society in additional feedback to the Independent Panel examining the impact of the 2014 family justice reforms. The Law Society’s latest submission says it remains hopeful that the current review will lead to design changes that deliver sustainable access to justice for the many New Zealanders who need support in resolving their family disputes. Considering the issues around judicial resourcing and delay, the Law Society says it is imperative that more judicial hearing time is available in the Family Court, including the allocation of more judicial resource. It supports the proposal for establishment of a new role of Senior Family Court Registrar (SFCR). “The combination of both increased judicial resourcing and the new SFCR role would have a significant impact on reducing delay so that matters are able to be heard in a timelier way. If more judicial time is not available, we believe that other proposed changes will not be sufficient on their own, or collectively, to reduce the significant delay currently experienced in the Family Court.”

Delay significant problem Delay is one of the most significant problems facing the Family Court, and this is one of the reasons there has been a dramatic increase in without notice applications since the 2014 changes, the submission says. “It is essential that more judicial hearing time is made available ... to reduce the delays. That is a critical factor; without it, the other proposed changes will not be adequate to make any substantial improvement.”

N E W Z E A L A N D L AW S O C I E T Y

The Law Society says delay should also be addressed by establishing an effective and efficient triage system, streamlining the process with fewer court events, and allowing parties to have legal representation at all stages in proceedings (including pre-proceedings). “If these issues were immediately addressed, we believe this would result in a significant reduction in delay and substantially reduce the number of without notice applications.”

Effective triage system needed An effective triage system would identify and enable the most appropriate response available for parties seeking assistance to resolve parenting and guardianship disputes. The Law Society says establishment of a new Family Justice Sector Coordinator is a positive proposal and such a role will be key in triaging matters either to an out-of-court or in-court process. To streamline the process with fewer court events, the Law Society says cases should be limited to four key court events unless circumstances require otherwise. “Files should be allocated to an individual case manager at an early stage to ensure matters are dealt with and cases are progressed to ensure that judicial sitting time is only used when matters are ready to proceed.” Complex cases need to be defined to they can be identified early and triaged appropriately. The submission says complex cases need early and effective intervention and should be case managed by an individual judge, with assistance from an SFCR and case manager. Another factor in securing positive changes would be the establishment of a robust IT platform which enables nationwide electronic filing for the Family Court. This would have significant cost savings and efficiences for the family justice system, the Law Society says, noting that it is “well overdue”. “The increased use of technology, such as Audio-Visual Links (AVL) and teleconferencing would provide significant cost savings and efficiencies in the family justice system.” ▪

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NEW ZEALAND LAW SOCIETY

Proposed AML/CFT class exemption for barristers sole supported

Law Society appoints independent Board member

The Law Society says it continues to support the limited class exemption for barristers sole from the Anti-Money Laundering and Countering Funding of Terrorism Act 2009 which is sought by the New Zealand Bar Association. The Law Society has made a second submission on a second Ministry of Justice consultation paper on the proposal. The paper seeks feedback on two potential options for the exemption. The Law Society notes that, as the exemption would only apply where a barrister is instructed by the solicitor and the relevant barrister is carrying out “captured activities”, the exemption is in practice very limited in scope. It says the risk of money laundering going undetected and unreported appears low, given the unique relationship that exists between a barrister and their instructing solicitor when acting for a client and the distinct features of barristerial practice. The Law Society says it considers that option 1 would be acceptable in principle, with some amendments to reflect the realities of legal practice and the practical operation of the Act. The two options differ in that option 1 would exempt barristers from ss 10-22, 25-39, 48A-49, 51-52, 56-61 and 68-71 of the Act. Option 2 would exempt them from ss 10-22, 25-31 and 48A-48C. Both exemptions would be subject to the same conditions. Under option 1 a barrister would be required to file suspicious activity reports, conduct enhanced due diligence for an activity requiring a suspicious activity report, and keep records of suspicious activity reports as well as identity and vertification records. Option 2 would mean a barrister was subject to all other compliance obligations. The Law Society says it appreciates that Ministry of Justice officials may not be familiar with some of the nuances of the instructing solicitor/barrister relationship and that further discussion and explanation may be needed. ▪

Christchurch-based social entrepreneur Jason Pemberton has joined the New Zealand Law Society’s Board. It is the first time that someone from outside the legal profession has been actively involved in helping set the Law Society’s direction. To meet the requirements of the Law Society’s constitution, Mr Pemberton’s status is an independent Board observer. His role is paid and he has full speaking rights at each meeting of the Board. “Jason’s participation in Board meetings brings new perspectives and experiences to the table. This is a very important time for the Law Society and the legal profession as we focus on initiating and implementing significant cultural change,” says Law Society President Kathryn Beck. “Until now the Board has been made up of the President and four Vice-Presidents, representing Auckland, the central North Island, Wellington and the South Island. It must be stressed that they provide very sound governance and fully represent the views of the profession. This has now been enhanced by including someone from outside the profession who brings other viewpoints. “Our experiences and research over the past year have shown that a significant proportion of New Zealand’s lawyers operate in environments where stress, harassment and bullying and other workplace issues have a major impact. We are totally committed to addressing this in a wide variety of ways which range from the Culture Change Taskforce through improvements to the Practising Well initiative, the Gender Equality Charter, a focus on enhancing diversity, modifications to the regulatory mechanisms we operate under and also in the governance of the legal profession. Jason Pemberton’s inclusion on the Board is another very welcome step on this road.” Mr Pemberton, 31, has a background in Human Resource Development and has been active in a wide range of charitable and social enterprise movements. His company You Think consults to initiatives with social or environmental objectives at their heart, and he is a Director of Felt.co.nz – the online marketplace for goods and gifts, direct from New Zealand makers. He was a co-founder of the University of Canterbury Student Volunteer Army, and has governance experience in youth development, arts education, health and disability, design thinking, and with the New Zealand National Commission for UNESCO. He was instrumental in the design and delivery of the Social Enterprise World Forum in Christchurch in 2017 and is currently writing a book in service of those working on social or environmental projects. ▪

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Specialist standards committee for feerelated complaints A standards committee specialising in fee-related complaints has been granted permanent status by the Board of the New Zealand Law Society. Standards committees are independent statutory committees that determine complaints against lawyers under the Lawyers and Conveyancers Act 2006. Committees are made up of experienced lawyers and members of the public. They resolve around 1500 complaints per year. The Law Society’s Lawyers Complaints Service (LCS) frequently receives fee-related complaints. A 2017 snapshot revealed 25% of complainants raised concerns about overcharging, either generally or by exceeding a fee estimate. In October 2017 the Board established a pilot Standards Committee (the Costs Committee), aimed at improving the timeliness and efficiency of resolving fee-related complaints. Since its establishment, the Costs Committee has focused on reducing the number of complaints requiring the appointment of an independent Costs Assessor. Costs Assessors are lawyers who volunteer their time to review and report on the fees charged. While Costs Assessors perform an invaluable service, their appointment can extend the time needed to resolve a complaint. The Costs Committee has sought to reduce the number of Cost Assessor appointments by allocating each complaint to a suitably qualified Committee member, to review the relevant fee matters on the committee’s behalf. Costs Committee members from across the country have been recruited for their experience in a range of legal fields. This gives the committee the breadth of expertise to assess most complaints.

Far fewer referrals The Costs Committee’s approach has resulted in far fewer referrals to Costs Assessors – to date only 2.5% of its cases

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have required a formal Cost Assessment, as opposed to 14% across other standards committees. The Costs Committee has also increased its focus on mediation as a means of resolving fee-related complaints, with 18% of its complaints resolved via agreement between the parties. Susan Rowe, the committee’s convener, says fee-related complaints are often ideally suited to mediation: “In many cases the complaint arises out of a lack of communication by the lawyer at the outset over the level of work needed to complete a file,” she says. “Mediation provides the client with an opportunity to express their concerns in person and gives the lawyer a chance to explain what work was completed. An apology given in person, or an offer to compromise on fees (even if relatively minor), goes a long way to resolving these disputes.” While it is pleasing to see an improvement in the resolution of fee-related complaints, in an ideal world these disputes would be resolved without the intervention of the LCS. The New Zealand Law Society recommends lawyers clearly set out their role and professional obligations at the start of a retainer, by summarising the key terms of engagement. This ensures clients know where they stand and what to expect from their lawyer. It can also facilitate open discussion and reduce the risk of disputes reaching the stage of a formal complaint. In 2017 the Law Society published information and a model document to assist lawyers. This can be found on the Law Society website in the section For Lawyers/Client care information. The Costs Committee’s new measures have improved the timeliness of resolving fee-related complaints by 35% – a fantastic result. The lessons learned from the pilot will now be shared with all standards committees to improve their resolution of fee-related complaints. The New Zealand Law Society thanks those committee members who were a part of the pilot and now continue as permanent members. ▪

Mosque attacks and the legal community The legal community all shares a sense of horror and disbelief at the events that unfolded in Christchurch on Friday, 15 March, Law Society President Kathryn Beck said in a message to the profession. “I urge the profession to come together, and work together, as a strong, caring and inclusive community. I am sure you will join me in expressing our deepest condolences and solidarity with the families, friends and communities suffering so deeply in the wake of this national tragedy.” In the week after the mosque attacks, the Law Society’s Canterbury Westland branch was able to provide support and assistance to lawyers who were approached by victims or their families for legal assistance. ▪

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NEW ZEALAND LAW SOCIETY

The President of the New Zealand Law Society On 10 April 2019 Tiana Epati becomes the 31st elected President of the New Zealand Law Society. She takes over from Kathryn Beck, who has completed three years as President. Kathryn and Tiana were asked to reflect on the role, the profession and their own situations.

Kathryn Beck What stands out for you over the three years you have been Law Society President? The people. Throughout the last few years I have been consistently heartened by the quality of the people we have in our profession. I have come across extraordinary generosity of spirit. People who give of their time and energy when they are stretched themselves. People who work hard for little or nothing because they believe in what they do. People who stay calm and kind when things get fraught, who operate with genuine compassion. Clever and creative people who see possibilities and pathways when others have hit dead ends. Good people. People who enable us to have faith and pride in the profession. They believe in and operate with integrity and respect. They are the strength of the profession. They are in all areas of law and all types of practice. They believe in what they do and they make a difference every day. It is our people that will be our point of difference in an increasingly depersonalised world and we need to value them and support them to thrive. How would you describe the state of New Zealand’s legal profession? I think we are poised. We are on the brink of change; not to the fundamentals – integrity, respect, upholding justice or operating in the best interests of the client – but to how we operate on a day-to-day basis. People can feel it. Things are different. It’s uncomfortable. The world around us is changing rapidly and we have been slow in some instances to respond to that. I’m not just talking about digital disruption or new technologies. We were given a massive wake-up call last year that our systems and culture were harmful and we are a bit bruised from the battering that 14

we got from a number of quarters, including our own people. We had to have a good hard look at ourselves and in many cases we didn’t like what we saw. This was hard for people, especially those who behaved with integrity, were proud of their profession and hadn’t seen the things that were happening. But as a profession we listened, we reflected and we accepted that things had to change. There is still a long way to go but people are willing and there is a momentum and genuine desire for change. For some people this is exciting, they’ve wanted this for a while. They are impatient to just get on with it. Many are stepping back and taking a strategic approach to what the future of law looks like. They are excited too, but they know that transformational change takes commitment over time. Others are cautious and they are probably tired. The practice of law is deeply rewarding but hard. Change takes energy. Where can you find that in today’s busy world? Where do you even start? And, they are worried that we will lose the good things that make being a lawyer special. So, people are coming at it from different angles and, of course I know that some people have no desire to change at all, but in the main the state of the profession is one of readiness and anticipation. We are ready to review what we do, how we do it and where we do it. The world will not let us stand still. Importantly we are ready to rethink how and what we value. We know we need to do that if we are to be sustainable in the future. What I am getting from the profession is an absolute determination to remain relevant and prove that we are a good profession. We do not need to lose who we are to do that. There is a particularly apt whakatautoki, Ka mua, ka muri “walking backwards into the future” – the idea that we should look to

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As a profession we listened, we reflected and we accepted that things had to change. There is still a long way to go but people are willing and and there is a momentum and genuine desire for change.

day, perhaps even more so in the role of President. And I get to work with people in all their glory, the good, bad, indifferent and fabulous. Personally, how has being President of the Law Society left you?

the past to inform the future. We can look to our core traditional professional values such as integrity, respect and justice, that are still meaningful today and use them to guide our transformation into a sustainable and inclusive profession. In 2019, what does being a lawyer mean for you? This will be different for different people because the practice of law, while often very public, is also deeply personal. I wanted to be a lawyer from a young

age (about 12). There were none in our family and I can’t tell you why or what triggered it. There was no epiphany that I can recall. It was what I wanted to do. I believed in what it stood for – which was upholding the rule of law and fairness. I still believe in those things although I am still learning every day about what they mean. I have found that it is a place where I can use my intellect, my experience, my imagination, skills and training to solve problems. I get to work stuff out and hopefully make things better without destroying things in the process... unless they need to be. It is not abstract: the work I do impacts people every

Ask me again in a few months because at the moment I’m knackered! I’m a bit bruised, last year took its toll and I struggled with some aspects of it but I never regretted being in this role. Deeply grateful that I have had this experience and that I have been able to contribute to the profession. Like I’ve still got so much more to do but okay that someone else will be doing it – we have a clever, strong and fierce champion for the profession in Tiana. Most of all I am proud, hopeful and determined that we will be a place where people can come and truly fulfill their potential. I have absolute faith in our profession and because of that and the fabulous people who have supported and held me up. I feel that I am a better person going out than I was coming in. I have learned a lot and for that I am deeply grateful. 15

In November, the Culture Change Taskforce will also deliver its report on long term culture change. The Taskforce is a key player in developing a strategic framework and action plan that will support the creation and maintenance What are the issues which are facing of healthy, safe, respectful, and inclusive legal New Zealand’s legal profession? workplaces. The 19-member taskforce repreThe issues affecting the profession are considsents a broad group of people, communities and regions across our profession. It brings erable but also extremely varied. Currently, we face the pressing need for fundamental culture together lawyers and non-lawyers of differing change, major advances in artificial intelligence ages and experiences from around the country. and technology, increase in regulation, and My immediate focus as President will be to access to justice for many in our country becomlook at the Law Society to ensure it has the organisational capacity and the right structure ing increasingly out of reach. Unsurprisingly, when lawyers were asked in the Law Society’s to ensure we can quickly start delivering on a annual survey what the major challenges for culture change strategy plan this year. Other them were, they said stress and anxiety. initiatives can begin right now. 2019 will be a year of delivery. We will be We will do some deep thinking in relation to major advances in technology which are implementing the recommendations of the Working Group led by Dame Silvia Cartwright on increasingly seeing the ‘middleman’ removed our regulatory system to ensure from transactions. More support we have an effective complaints and education will be needed for regime to deal with, and deter, I think being a lawyers currently grappling with lawyer in 2019 this change to our practice enviunacceptable behaviour. These recommendations are relatively is about looking ronment. Regulating in this area complex and wide-reaching. at our individual will also create issues in a couple They include: changes to our place in the wider of years with the meaning of a Act, standards committees’ regprofession, and ‘person’ and ‘property’ becoming even Aotearoa, complicated by the emergence ulations, the practice rules, CPD rules and rules of conduct and and asking of artificial intelligence and client care. Some have already ourselves “am crypto-currency. Having a strong been enacted – for example, the I doing enough relationship with the law schools setting up of a national specialand being enough will be a key feature given they to fulfil the oath will need to re-think how we ised standards committee to hear sensitive complaints. I took to become teach the practice of law.

Tiana Epati

a lawyer?”

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What is also We also need to provide the propositive is the fession with clear guidelines in a changing regulatory environment. high level of In addition to the changes resulting engagement from the Working Group, our profrom all parts of fession is still working through the the profession. challenges associated with AML/ We have some CFT. This is having a particularly fierce senior big impact on medium and small women lawyers firms who do not have the resource and mana wahine to cope. We will work with the who are driving Department of Internal Affairs to for change. provide clarity to the profession as we near the end of our first year under this new regime. Supporting the overall health and well-being of lawyers is a key priority. We need new and better funded ‘Practising Well’ initiatives, such as access to free counselling sessions for practitioners who are struggling, a separate stand-alone well-being unit or committee and a suite of resources for lawyers who are supporting other lawyers. Finally, we need to make some material advances on access to justice. There is a lot of academic research being undertaken and a recent triennial review of legal aid to which the Law Society provided comprehensive input. But we need to do more. We have an increasing number of lawyers declining to be providers of legal aid which is already affecting smaller regions. I want to see the Law Society drawing on all the work being done in this area and driving initiatives which support changes to our justice system to ensure people who are affected by legal problems can access legal assistance. Justice is done when there is competent and resourced counsel on both sides. How would you describe the state of New Zealand’s legal profession? We clearly have work to do when it comes to behaviour and our workplace culture but the fact that 79% of the lawyers who responded to the workplace environment survey said that, ultimately, their job gave them an immense amount of satisfaction tells us the New Zealand legal profession is in better shape than perhaps we think. We are also considered more trustworthy by the public than lawyers in Australia. In a report on ‘The future of trust,’ carried out for Chartered Accountants Australia and New Zealand (CAANZ) New Zealand lawyers were seen as trusted by 72% by the respondents. This compares rather favourably to the 61% of respondents who trusted Australian lawyers. What is also positive is the high level of engagement from all parts of the profession. We have some fierce senior women lawyers and mana wahine who are driving for change. Young lawyers have taken a particularly keen interest in what is happening, are future focused and are 18

wanting to be involved in finding the solutions. I have also been impressed with the number of senior male lawyers who are stepping up to champion change. We have the highest level of engagement by the profession I have ever known in my almost 20 years of practice. I take a lot of pride and hope from the fact that everywhere you look there are lawyers from all backgrounds wanting to be involved. Despite all the change occurring, I think the profession is strong and resilient enough to come through to the other side. In 2019, what does being a lawyer mean for you? For those of us in senior positions, it means going back to the reason you became a lawyer in the first place and drawing on our core ethics. Most, if not all, of us became lawyers to be of service to the community, do

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Personally, how are you preparing for the next three years?

something good and to make a positive impact. It is about remembering that it is a privilege to be a lawyer and with that comes obligations and responsibilities. We take an oath to be admitted into practice and we need to remember that. I read something the other day which said “if your dream does not include others, you are not dreaming big enough”. I think being a lawyer in 2019 is about looking at our individual place in the wider profession, and even Aotearoa, and asking ourselves “am I doing enough and being enough to fulfil the oath I took to become a lawyer?” It is ultimately about assisting clients and ensuring the law is fulfilling its purpose to provide fairness. But, we also belong to a cohort with a collective reputation to uphold. We all have our part to play in that. I think it is also about having a holistic view to career progression and questioning the value which can be placed on things like status and wealth. I am not saying improving our own lives with financial stability and reward should never be part of joining the profession; I believe it should not be everything.

I have given a great deal of thought over the last few months about what I can best do to help the profession progress. The challenges we faced in 2018 caused divisions. I believe an over-arching national mentoring scheme which supports existing programmes can help bring the profession together. It could also fill gaps in the profession and regions where lawyers do not have access to much support. All the research and anecdotal success stories highlight mentoring as a key component. Mentors often get as much out of the relationship as mentees, particularly in a reverse mentoring situation. I would like to see it made available to everyone in the profession, including admitted lawyers who have yet to find employment. I want to see mentoring sessions become CPD compliant if certain criteria are satisfied. Everyone wants to be involved and make an impact, so structured mentoring schemes run through the various branches of the Law Society is a way of bringing everyone together. I have given away almost my entire criminal practice to ensure I can commit the time required to being President of the New Zealand Law Society. The demands of the role are maybe the greatest they have been. My President’s calendar is already filled up to August. As I said, the year 2019 is about delivering on all the work which was started in 2018. By the end of the year we will have a blue-print for culture change and the organisational capacity to act. We then have 2020 and 2021 to keep delivering culture change and supporting the profession It is not a sprint, it’s a 1000-day marathon. So, I am keen to keep some balance and ensure I have down time at home in Gisborne with my family. And still have time to occasionally surf and go for a run on the beach. ▪ 19

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THE JUSTICE SYSTEM

Celebrating two Chief Justices BY GEOFF ADLAM

you represent, often at times of great strain for them. The judiciary appreciates very much the work of the profession. We know its essentiality to our own and to the values we share.”

Judging

New Zealand’s judiciary has a new leader following the swearing-in of Chief Justice Dame Helen Winkelmann at the Supreme Court in Wellington on 14 March.

Dame Sian Elias Six days earlier, on 6 March, the court had been the venue for a special valedictory sitting for retiring Chief Justice Dame Sian Elias. Appointed on 17 May 1999, Dame Sian was 19 years and 9 months in the role – the third longest of any of our Chief Justices. She was also our first woman Chief Justice and her valedictory sitting was held on International Women’s Day. Along with Dame Lowell Goddard, Dame Sian was the first woman to be appointed Queen’s Counsel in 1988, and the first woman to be appointed Dame Grand Companion of New Zealand. She has been the first presiding judge for our Supreme Court since it began to sit in 2004. In her address, Dame Sian commented on a number of issues around the courts and our justice system:

The legal profession “…we do not take enough time to speak about the importance of the profession to the rule of law. Sir Owen Dixon thought it more important that there be independent lawyers even than that there be independent judges. I have had occasion in the past to express agreement with that view and to say that the depth of talent and decency we have in the profession demonstrates its fitness to ensure that ours is a society under law, without which no one has security. On this occasion I want to express appreciation for the work of the profession in making ours a just society. My life in the profession has been happy and fulfilling and I have great admiration for the work you do and the burdens you carry in representing the hopes of those ◂ Dame Helen Winkelmann being sworn in as the 13th Chief Justice of New Zealand at the Supreme Court on 14 March.

“I am not someone who subscribes to the ‘big man’ or ‘big woman’ theory of law. Law is the work of many hands. It is a great movement in which all of us play our parts: judges, the registry staff, the judicial support staff, as well as the counsel who fashion the arguments and the academics who question the results. These institutions and traditions are strong.”

Access to justice “We have to be ambitious for a just society. It is no use having an independent profession or independent judges if few can afford to get to court or obtain legal representation. A legal order is no use if the law is unjust or cannot adapt to prevent injustice. It is unlikely to be fit for purpose if judges and lawyers have no insight into the lives and legal needs of the communities they serve.”

The Supreme Court “The establishment of a final court of appeal [the Supreme Court] has been a highlight of my years in law. It has opened up possibilities for New Zealand law that were not available to the judges who served before us. “In our work we usually do not give any thought as to whether we are making a distinct contribution to New Zealand jurisprudence. We are too busy trying to do what is right according to law and the case in front of us. Anyway, that is not the nature of the enterprise. A court does not organise the cases it hears. It does its bit with the cases brought to it. Nevertheless, there are differences in an apex court. Some of them we are still identifying and working through. “A final court should not sleepwalk in its function. It has to be conscious always of how this bit of law fits with the architecture of the whole. It has to endeavour to make statutes and common law march together and be coherent. It has to believe in its role. If it cannot explain what it is doing and why, who will? If its members don’t believe in the court, who will? It is always necessary in the work of a final court to leave room for second thoughts. As Lord Reid said in his celebrated ‘fairy-tale’ speech, second thoughts are not always best, but they generally are.” “[The Supreme Court courthouse] is not one of our 21

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historic courtrooms, which still echo with the footfalls of the past. It is not a place built to convey the majesty and power of the law or to command obedience. It is not indelibly stained with sad episodes in our history where doors have been shut and hopes dashed. It is instead a place built to express the hope of justice through law and the confidence that a new court will administer the laws in this country with knowledge of its own history and traditions. Cicero once suggested that the foundation of all law is the natural propensity we have to love our fellow man. I think of this place as one of love and justice. I have been very privileged to have served in it.”

Serving as Chief Justice “A Chief Justice is not a manager or even a leader in any usual sense. One of the obligations of the Chief Justice is to ensure space for the independence of each judge in judging. “I am very happy to relinquish office. I have had a truly wonderful time with amazing experiences and great personal satisfaction in the judicial work, but it is high time to stop. I am delighted as we all are in the new Chief Justice.”

Dame Helen Winkelmann, Chief Justice of New Zealand Dame Helen Winkelmann was sworn in at a ceremony in the Supreme Court on 14 March, to become our 13th Chief Justice. The swearing-in ceremony was attended by the leaders and prominent members of the legal profession and judiciary. Those in attendance included the GovernorGeneral Dame Patsy Reddy, the Heads of Bench, Justice Minister Andrew Little, Attorney-General David Parker, the Chief Justices of New South Wales and Victoria, and most of New Zealand’s senior courts judiciary. 22

▴ Dame Sian Elias, the outgoing Chief Justice. Photo by Simon Woolf.

Proceedings began with a pōwhiri delivered by representatives of the mana whenua, Te Āti Awa. The senior Supreme Court judge, Sir William Young, administered the oath of office. Dame Helen took the Oath of Allegiance and the Judicial Oath in English and te reo Māori. Appeciation of Dame Helen’s achievements and her appointment plus a focus on access to justice was a strong theme of all the speeches made. Attorney-General David Parker noted that the appointment of Dame Helen and her predecessor Dame Sian – the first two women to be appointed Chief Justice – was “an indication that the ledger is balancing towards equality”. New Zealand Law Society President Kathryn Beck, New Zealand Bar Association President Kate Davenport QC and Auckland City Missioner Chris Farrelly also addressed the court.

Winkelmann CJ In her first address as Chief Justice, Dame Helen said she felt the weight of the responsibility of the role she was sworn to perform. “I imagine the line of Chief Justices I join, stretching back to the first Chief Justice, Sir William Martin. I acknowledge this tradition of service. I follow in the footsteps of a Chief Justice who has been a transformative figure in New Zealand’s legal system and society.” As had Dame Sian a week earlier, Dame Helen paid tribute to the form and substance of the Supreme Court. “Those who designed this [courthouse] did not look to the courts of England for their inspiration – they looked closer to home, to the kauri cone, with its interleaved petals that give the cone strength and shield the seeds inside, so that the hope for the next generation is protected. “The design is, I think, consciously a metaphor for this court, and more broadly for the relationship that courts seek with New Zealand society. It grounds this house and with it this court, Te Koti Mana Nui, in these

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islands in the South Pacific. It conceives of the justice administered here as protective of our people, the people of New Zealand, so that our hopes of a safe and fair society can be fulfilled.”

The fulfilment of a vision The creation of the Supreme Court was itself the fulfilment of a vision, Dame Helen said. “A vision that important legal matters, including those related to the Treaty of Waitangi, should be resolved with an understanding of New Zealand’s conditions, history and traditions. A further desire was to provide access to justice; New Zealanders would no longer have to travel across oceans to argue cases before judges, some of whom had never touched the soil of our land or seen its rivers, mountains and forests.” She said the Supreme Court has woven the history of our nation into important judgments concerning the status of the Treaty. “It has provided access to justice. A far greater number of cases have been decided before this court, particularly in the criminal justice jurisdiction, than was ever possible when our final court resided in Downing Street, London,” she said. Dame Helen said that, as Chief Justice and the presiding member of the Supreme Court, she expected the court would continue to decide cases in a way fit for the nation “drawing upon the richness of our two founding cultures, and utilising the intellectual wealth and creativity to be found amongst our profession and in our diverse society.”

The importance of courthouses Being head of the judiciary did not, however, as was sometimes thought, involve making resourcing decisions. Providing resources to the courts in the form of safe and effective courtrooms and systems was the responsibility of the Executive arm of government, although the judiciary had a least a voice in those resourcing decisions. There was one comment only that she would make about the resourcing of the courts. The effective administration of justice depends on effective human interaction, she said. “Not all but many of the interactions need to be on a face-to-face basis. The presence of courthouses in which lawyers can meet with their clients and in which judges can see and talk to defendants in person is a holding thread in our justice system. Courthouses represent the presence of law in towns throughout New Zealand. The people who work within the courts are leaders of their community. They are a source of knowledge as to how the system works, and for those who do not have the means to pay for legal advice, sometimes they are the only source of knowledge about the law.”

Voices not normally heard One of the speakers before Dame Helen delivered her address was Auckland City Missioner Chris Farrelly. Dame Helen noted that it was a small departure from convention to have a person who is not a lawyer speak

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at such a ceremonial event. “But Mr Farrelly was invited to speak so that voices not usually heard in our courts are represented on this day. A day in which we think and speak of our hopes and expectations for the administration of justice. He reminded us to think of those who are marginalised, who are marginalised because they can’t engage with the social and economic frameworks of our society for whatever reason – and it’s most often poverty, sometimes disability, ethnicity, or, as he identified, the experience of trauma in their lives. “Without the ability to have their voices heard, the marginalised are vulnerable for exploitation and abuse. We frequently see those who live in poverty in the criminal jurisdiction of the courts but seldom in the civil jurisdiction. But those in the lower socio-economic brackets have very real and often very complex legal needs. Lacking economic power, the poor – perhaps more than any other part of our society – need and should be afforded the law’s protection.”

Troubling obstacles to access to justice There are significant and troubling obstacles to the achievement of access to justice, Dame Helen said. Without knowledge of the law, many don’t know they have a problem with which the law can help them. “The cost of legal representation is so great that it is only the well-to-do who can afford a lawyer to represent them in the court. And that really is a substantial challenge for the profession. There are few lawyers practising civil legal aid and fewer still in areas of need and the reasons for that problem are complex. For those who decide to go it alone and attempt to represent themselves, there is still a considerable cost barrier of court fees and the difficulty of court procedure. “The solution to many of these problems lies beyond the control of the judiciary but ... the judiciary cannot shy away from them. As Chief Justice I can use occasions such as this to highlight the issues and where I can be of assistance, I will support the work of the profession and the community in removing the barriers that stand in the way of those who would seek “Those in the the shelter of the law.”

lower socioeconomic brackets have very real and often very complex legal needs. Lacking economic power, the poor – perhaps more than any other part of our society – need and should be afforded the law’s protection.”

Live streaming The event was live streamed. Dame Helen noted this, commenting that the important ideas and concepts, and the expectations that had been addressed to her as the incoming Chief Justice could be heard by those beyond the four walls of the courtroom. “And, of course, there will exist a record of my words today. That means, that when in the future, I hand over to the 14th Chief Justice, I can be measured against the ideas and ideals of which I have spoken.” ▪ 23

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THE JUSTICE SYSTEM

New Zealand’s judiciary at 14 March 2019 BY GEOFF ADLAM

Total

Avg. time as Judge

Avg. time in this court

Supreme

17y 9m

4y 4m

Appeal

12y 1m

2y 11m

6y 10m

5y 9m

Associate High

8y 1m

6y 10m

Employment

4y 7m

4y 3m

Māori Land

12y 4m

District

105

160

11y 3m

Total

155

237

10y 6m

High

Education and legal career Information on the careers of senior court judges shows that the highest number completed a law degree at the University of Auckland. Associate Judges are included in the High Court figures. Information is not available for the other courts.

Completion of law degree by senior courts judiciary

Average ages Judicial retirement is required when a judge turns 70. Inquiries to judicial offices and supporting agencies indicate that the average New Zealand judge can expect about another decade in office before reaching retirement age. The Crown Law Office has advised that the average age of all senior court judges, excluding Associate High Court judges, is 61.2 years old. The Office of the Chief District Court Judge advised that the average age of a Distict Court judge is 60. The average age of permanent Māori Land Court judges is 52.

Ethnicity Information on judicial ethnicity was sought from the judicial offices and supporting agencies. The last public information came from the 2013 Census. This showed that in March 2013, 93% of judges said they were of European ethnicity, with 10.8% saying they were of Māori ethnicity. 24

Court Supreme Appeal

VUW

Men

Otago

Women

Court

Canterbury

New Zealand judiciary at 14 March 2019

Unfortunately 2018 Census details will not be available until near the end of 2019. The Judicial Office for Senior Courts did not provide information on the ethnicity of senior courts. The office of the Chief District Court Judge stated at 1 March 2019, 18 District Court judges were Māori, 3 were Pasifika, and 2 were Indian. It noted that some judges identify with more than one ethic group. The Māori Land Court advised that of the 11 permanent and two acting members of the Court, 11 identified with and had Māori ancestry.

Auckland

On 14 March as our new Chief Justice was sworn in, New Zealand had a permanent judiciary of 237. They had been members of the judiciary for an average of 10 years and 6 months and 65% were men. The following table shows the judiciary in each of the courts at 14 March, with the average time since appointment over judicial careers and also since appointment to a particular court. Acting judges are not included. At that date there were also one Acting Supreme Court Judge (male), 26 Acting-Warranted District Court Judges (5 women and 21 men), two Acting Māori Land Court Judges (both male) and one Acting Employment Court Judge (male). Judge Damian Stone was sworn in as a Māori Land Court Judge on 22 March and is not included in the table below.

High

Total

Exactly half of the senior courts judiciary were practising as barristers on appointment – either as Queen’s Counsel or barristers sole. District Court judges are more likely to be working in law firms on appointment, with 31% practising as barristers on appointment.

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Law firm

Sole Practice

Queen’s Counsel

Barrister sole

Govt.

Other *

Role on appointment to judiciary

Supreme

—

Appeal

—

Court

High Employment District Māori Land Total

—

115

longest-serving for the High Court (appointed a Master – Associate Judge – in 1995 and then a High Court Judge in November 2002), and Chief Judge Inglis longest-serving for the Employment Court (September 2011).

* Includes universities, local authorities, NZ Law Society, NZ and international tribunals.

And remuneration

Supreme Court judges were first appointed to the judiciary on average 19.8 years after their admission as barristers and solicitors. Court of Appeal judges were first appointed an average of 26 years after admission and High Court judges were first appointed to the judiciary on average 29.8 years after their admission as barristers and solicitors. Detailed information is not available for the other courts.

Judicial remuneration is set by the Remuneration Authority under the Remuneration Authority Act 1977. The latest determination was made on 18 December 2018 and set remuneration for the period from 1 October 2018. In this the Authority abolished a principal allowance for general expenses, saying it “is redundant in this modern world”. From now on, judicial remuneration includes the grossed-up principal allowance for general expenses. Some positions received a higher increase to address historical relativity issues. The Authority is required to have regard to a number of factors when setting judicial remuneration and allowances. The total remuneration in the latest determination is as follows. The combined salary and principal allowance determination for the previous year is shown for comparison:

District Court judges The Environment Court is not a division of the District Court but all Environment Court judges are considered District Court judges. Of the nine Environment Court judges, three are women and six are men. Environment Court judges have had an average of 11 years and 6 months since their appointment. While 34% of District Court judges are women, analysis of the warrants issued shows that 47% (27 of 58) of the Family warrants are held by women. However, just 21% of civil trial warrants (10 of 48) are held by women. Women hold 23 (43%) of the 54 Youth Court warrants and 30% (32 of 105) of jury trial warrants.

Total salaries (including principal allowances) Judicial officer

1 Oct 2018 1 Oct 2017

2017 to 2018

Chief Justice

$553,100

$540,300

▵ 2.4%

Judge of Supreme Court

$518,400

$506,300

▵ 2.4%

President of Court of Appeal

$518,400

$506,300

▵ 2.4%

Longest tenure on the bench

Judge of Court of Appeal

$486,500

$474,800

▵ 2.5%

Of permanent members of the judiciary who are serving at present, District Court Judge David Saunders has been longest on the bench, since 3 December 1993. Other judges who have a long tenure are Judge Tony Adeane (16 December 1993), Judge Jane Lovell-Smith (3 March 1994), Judge Brian Callaghan (7 July 1994), District Court Chief Judge Ann-Marie Doogue (21 July 1994) and Māori Land Court Chief Judge Wilson Isaac (11 March 1994). The longest-serving member of the Supreme Court bench is Justice William Young (appointed 1 July 2010), with Justice Christine French (6 August 2012) longest-serving for the Court of Appeal, Justice Geoffrey Venning

Chief High Court Judge

$486,500

$472,800

▵ 2.9%

Judge of High Court

$464,100

$452,400

▵ 2.6%

Associate Judge of High Court

$369,000

$345,000

▵ 7.0%

Chief District Court Judge

$463,200

$451,800

▵ 2.5%

Principal Family Court Judge

$397,600

$393,200

▵ 1.1%

Principal Youth Court Judge

$385,700

$371,300

▵ 3.9%

Principal Environment Judge

$385,700

$371,300

▵ 3.9%

District Court Judge

$348,700

$345,000

▵ 1.1%

Chief Judge of Employment Court

$434,900

$430,000

▵ 1.1%

Judge of Employment Court

$393,100

$388,900

▵ 1.1%

Chief Judge of Māori Land Court

$397,600

$393,200

▵ 1.1%

Deputy Chief Judge of Māori Land Court

$375,100

$371,000

▵ 1.1%

Judge of Māori Land Court

$348,700

$345,000

▵ 1.1%

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Honour for Chief Justice Chief Justice Helen Winkelmann was appointed a Dame Grand Companion of the New Zealand Order of Merit on 4 March. Her honour was approved by the Queen, on the recommendation of the Prime Minister. “This appointment recognises the significance of the role of Chief Justice in New Zealand society and in our constitutional arrangements,” Prime Minister Jacinda Ardern said. “The Chief Justice is the head of the judiciary, and the link between the judiciary and the other branches of government.” Appointment as a GNZM is limited to 30 ordinary members. Additional appointments over this limit may be made to commemorate important Royal, State or national occasions. This is an additional appointment. The retiring Chief Justice, Dame Sian Elias, was appointed a GNZM in 1999.

Graeme Colgan elected UNAT Judge Former Chief Employment Judge Graeme Colgan has been elected by the United Nations General Assembly to be one of three new judges on the seven-member UN Appeals Tribunal (UNAT) for a seven-year term from 1 July 2019. The UNAT is the final appellate court in employment-related disputes involving the staff of the UN and most other international agencies. It convenes three times a year, principally in New York but also in Geneva and Nairobi. Mr Colgan, who will continue his local practice as a barrister and employment law specialist, is the first New Zealander to be elected to the UNAT.

Privacy Commissioner reappointed John Edwards has been reappointed as Privacy Commissioner for a further term. Justice Minister Andrew Little

says Mr Edwards has a global reputation in privacy and is a fearless advocate for his Commission. Mr Edwards was appointed in February 2014. Previously he was a practising lawyer with over 20 years’ experience in public law and policy who provided general corporate services for a number of ministers and Crown entities as well as advice and training on information law issues across the public sector. Mr Edwards also regularly undertook investigations and reviews for departments, Crown entities and ministers.

Director of Human Rights Proceedings appointed Michael Timmins has been appointed Director of Human Rights Proceedings. Mr Timmins holds an LLM from the University of Michigan and an LLB/BA from the University of Auckland. He specialises in international human rights law and has been working as a consultant and barrister in Auckland and Sydney since 2015. His areas of practice include administrative law, extradition, intellectual property, privacy, refugee and immigration law and non-profit governance. Mr Timmins has worked in Egypt, the United States, Australia, Thailand, Pakistan and New Zealand across roles in advocacy, academia and government.

Debra Angus joins Lambton Chambers Debra Angus has joined Wellington’s Lambton Chambers as a barrister sole. Debra has a wide range of experience in public, parliamentary and constitutional law, as well as maritime, r e g u l a t o r y, h e a l t h and safety and public finance issues. She was the Deputy Clerk of the House until 2015, a Legislative Counsel in the Office

of the Clerk and adviser to the Privileges Committee and the Regulations Review Committee. Debra has been a Crown Counsel and worked with a range of public sector agencies.

Buddle Findlay appoints senior associates and senior solicitor Ana Coculescu has joined Buddle Findlay’s Wellington office as a senior associate in the environment and resource management team. Ana advises both private sector clients and government clients on resource management law, contaminated land, local government law, environmental due diligence, waste and acquisition of land for public works. Before joining Buddle Findlay, Ana practised environment and planning law in New South Wales for nearly 10 years. Sarah Chin has joined Buddle Findlay’s Auckland office as a senior associate in the corporate and commercial team. Sarah specialises in corporate and commercial law, with a focus on mergers and acquisitions, joint ventures, overseas investment, corporate governance and commercial contracts. Before joining Buddle Findlay, Sarah worked at a large national commercial law firm. Kate Bradley has re-joined the firm’s Christchurch office as a senior solicitor in the corporate and commercial team. Kate advises on a range of property, corporate and commercial matters with a particular focus on development and construction. Kate returns after three years working in the real estate department of a central London top tier law firm where she specialised in development and construction. 27

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Paula Ormandy appointed Kensington Swan partner Kensington Swan has appointed Paula Ormandy as a partner in its national property team. Admitted as a barrister and solicitor in September 2007, she joins the firm from Bell Gully. Paula has 12 years’ experience with top tier firms, advising in all aspects of commercial property. Her specialty expertise is in property development, complex leasing deals and high-value portfolio acquisitions and disposals.

Honour for John Clark It has been pointed out that we missed a former lawyer from the list of members of the legal profession and justice community who received New Years’ Honours (LawTalk 925, February 2019, page 14). John Leonard Clark received a Queen’s Service Medal for services to the community. Mr Clark was chairman of the Cornwall Park Trust Board from 2011 to 2017 and had been a trustee since 1991. Our omission is regretted.

Lawyer on Infrastructure Commission establishment panel M i n t e r E l l i s o n R u d d Wa tt s p a r t n e r Sarah Sinclair has been appointed as a member of the panel of private and public sector experts to support Treasury

in the establishment of the New Zealand Infrastructure Commission – Te Waihanga. Ms Sinclair is a specialist in procurement, infrastructure, construction and project finance (including PPPs). She has worked in private practice and in-house in the infrastructure and construction sectors, both internationally and in New Zealand.

Commission for Financial Capability Adjudication Panel appointment Auckland barrister Anita Killeen has been appointed as an Adjudication Panel Member for the Commission for Financial Capability. Ms Killeen was admitted in January 1999 and practises from Auckland’s Quay Chambers, specialising in financial crime and fraud, civil and criminal litigation, and governance and decision-making.

Simpson Grierson appoints special counsel Simpson Grierson has appointed Sarah Chapman as a special counsel in its intellectual property group. Sarah will co-lead the group. She has over 20 years’ experience in intellectual property law. She specialises in advising local and international clients on trade mark law, including portfolio management, registrability, infringement and licensing. A BA and LLB graduate of the University of Auckland, Sarah is on the New Zealand committee of the Intellectual

Property Law Society of Australia and New Zealand.

Wynn Williams announces partnership with NZ String Quartet Wynn Williams has announced a partnership with the New Zealand String Quartet. The Quartet was formed in 1987 and performs over 60 concerts in New Zealand each year along with international concerts. As a charitable trust it works with children on specialist string programmes to assist their communities with affecting social change. It coaches outstanding young musicians at its annual Adam Summer School in Nelson.

Merger of firms From 1 February, Ngapo-Lipscombe Law and K J Hooks – Barristers and Solicitors have merged and are now NL Lawyers – Barristers and Solicitors with offices in Tokoroa and Putaruru.

Two senior promotions at Morris Legal Georgia Angus was promoted to the role of senior associate on 1 December. Georgia began working at Morris Legal in November 2016. Her clients include charities, professional trustees and high net worth individuals. Georgia is an experienced litigator and has appeared in the Family Court, District Court, High Court and Court of Appeal. Aria Newfield was promoted to the role of senior solicitor on 1 December. Aria joined Morris Legal in November 2017. Since that time, Aria has had extensive involvement in contentious trust, estate and relationship property matters. Aria has represented clients in both the Family Court and High Court and at mediation.

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Joanna Trezise joins Glenie Legal Joanna Trezise has joined specialist litigation firm Glenie Legal as a senior solicitor. Joanna previously worked as a commercial litigator at Bell Gully, then as a regulatory litigator and prosecutor at Meredith Connell where she specialised in competition and consumer law. Before qualifying as a lawyer, she gained an MA (First Class Hons) in Art History and worked for several years in galleries in Auckland and London. Joanna will work on all types of commercial disputes, with a particular focus on competition and regulatory law, public law, and property and construction disputes.

Steindle Williams Legal Ltd appoints two directors Steindle Williams Legal Ltd has announced the appointment of two directors. David Hoskin has joined the partnership effective 1 November 2018. Formerly a barrister, he began contracting to Steindle Williams Legal in 2010 and has since developed a busy litigation practice. He has over 27 years’ experience in matters ranging from the District Court to the Court of Appeal, as defence counsel in criminal proceedings, and in complex commercial cases representing individuals, businesses and large companies. James Stewart has been made a partner e f f e c t i ve f r o m 1 0 December 2018. He was admitted in 2007 and joined Steindle Williams Legal in that same year. Since joining the firm he has worked in most areas of

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general practise with a particular focus on commercial and company law.

Hannah Stuart joins Quay Chambers Hannah Stuart has j o i n e d Au c k l a n d ’s Quay Chambers as a barrister sole. Hannah has experience working for a range of clients on a variety of different criminal matters. She has also assisted many professional clients in addressing patient/client complaints, enquiries from regulatory authorities, and disciplinary investigations and proceedings. Hannah appears on matters in the District Court, High Court, Court of Appeal, Health Practitioners Disciplinary Tribunal, Teachers Disciplinary Tribunal, Parole Board and the Human Rights Review Tribunal.

Hesketh Henry promotes three to partnership Hesketh Henry has promoted three senior team members to partner. Hak Jun Lee joined the firm as a senior associate in 2015. After graduating from the University of Auckland he was admitted as a barrister and solicitor in 2001. He is also admitted to practise in New York and New South Wales. Hak Jun specialises in commercial property and property finance and is the head of the firm’s Asia practice. Emma Tonkin was admitted as a barrister and solicitor in September 2000 and joined Hesketh Henry’s private wealth team in October 2018. She specialises in private wealth, real estate and overseas investment and is an expert on the Overseas Investment Act 2005. Emma has advised on a wide

variety of business and lifestyle assets. Alison Maetzer was admitted as a barrister and solicitor in 2001 and joined the firm’s dispute resolution team in 2007 as a solicitor specialising in all aspects of employment law. Her background includes large firm and in-house local government experience. Alison regularly represents clients at mediation and in the Employment Relations Authority and has appeared in the Employment Court.

Three lawyers join Todd & Walker Law Queenstown and Wanaka firm Todd & Walker Law has welcomed three new lawyers. Peter Sygrove has joined the firm as a senior associate in the commercial property team. Peter has worked in top tier law firms in New Zealand and internationally. He is a specialist in in all aspects of commercial law including buying and selling real estate, retail and office leasing, property finance transactions and has advised clients on the management of substantial commercial property portfolios. Peter also has specific expertise in all matters relating to the Overseas Investment Act. Kirsty Allan has joined as a solicitor in the criminal and family law teams. Kirsty was admitted in 2016 and is an experienced criminal defence litigator, regularly representing clients in the District Court on a raft of criminal matters. Kirsty also specialises in family law with particular expertise in providing advice on care of children matters and separations. Lucy Pankhurst has joined as a solicitor after recently completing her law studies at 29

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the University of Otago. She was admitted as a barrister and solicitor in November 2018. Lucy is working to develop her experience in resource management and environmental law.

Richard Broad appointed to Asiaciti Trust Group management team Asiaciti Trust Group has appointed Richard Broad as managing director for its New Zealand office. Admitted as a barrister and solicitor in February 1982 after graduating from Victoria University of Wellington, Richard has worked at law firms in London and Wellington, specialising in trusts, estates, property, commercial law, companies and finance. Before joining Asiaciti he was Head of Legal, Personal Client Services at Perpetual Guardian New Zealand.

Davida Dunphy joins DLA Piper NZ partnership Davida Dunphy has joined the New Zealand partnership team at DLA Piper. Admitted as a barrister and solicitor in November 2005, she is a member of the real estate team. Davida’s particular experience is in commercial and mixed-use development, acquisitions/ disposals, portfolio management, land ownership structures and forestry matters.

Chapman Tripp promotes solicitors Chapman Tripp has promoted 10 new senior solicitors, effective from 1 March. Robbie Bennett is in the Auckland property and real estate team. Robbie specialises in all aspects of commercial property law, including development, acquisitions, disposals, leasing and subdivisions. Alasdair Long is in the Auckland property and real estate team. Alasdair specialises in commercial property with a focus on development and investment. His experience includes assisting local and international clients with overseas investment matters, complex subdivisions, commercial leasing, and the acquisition and divestment of significant real estate portfolios. Liora Bercovitch is in the Auckland litigation and dispute resolution team. Liora has expertise in contract and commercial litigation. She advises corporate and private clients on a wide range of disputes including tort and contractual claims, defamation and privacy issues, and regulatory matters. Moria Brengauz is in the Auckland litigation and dispute resolution team. Moria advises on a range of insolvency matters and various litigation claims, including contractual disputes and natural disaster insurance William Cheyne is in the Auckland litigation and dispute resolution team. William specialises in complex commercial litigation. He advises clients on a wide range of commercial disputes, including those involving property, competition, construction, tax, and international law aspects.

Rachael Jones is in the litigation and dispute resolution team. Rachael specialises in contentious public and private law litigation, including constitutional challenges, Māori legal issues, intellectual property disputes and fair trading claims. She has appeared in the Supreme Court, Court of Appeal and High Court. Dickson Lee is in the Auckland finance team. Dickson advises on transactional and corporate finance needs, with a particular focus on capital markets. He advises on a broad range of transactions, including Kauri issues, retail/wholesale bond offers, derivatives and the impact of the Financial Markets Conduct Act 2013. Briar Peat is in the Auckland corporate and commercial team. Of Ngāti Rangiwewehi and Ngāti Whakaue descent, Briar advises on a wide range of corporate and commercial matters, with a particular focus on post-treaty settlement transactions, mergers and acquisitions, joint ventures and collective iwi arrangements. Richard Hutchison is in the Wellington litigation and dispute resolution team. Richard has experience working on a range of commercial litigation matters, and specialises in insurance, construction and statutory liability disputes. Amy Hill is in the Christchurch environment, planning and resource management team. Amy specialises in resource management, environmental law and civil litigation. She has experience advising clients from a variety of sectors on matters including planning processes, consenting, environmental compliance and judicial review.

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Two promoted by Saunders Robinson Brown Christchurch law firm Saunders Robinson Brown has announced two promotions, effective from 1 March. Michael Vanner has been appointed an associate. Admitted in 2013, Michael is a member of Saunders Robinson Brown’s commercial team, having previously worked in the property team. Michael specialises in commercial property transactions and development, subdivisions, leasing, business sales and purchases and construction matters. Rebecca Mao has been appointed a senior solicitor. Rebecca was admitted in 2016 and is a member of the commercial team specialising in commercial property transactions, leasing, intellectual property, business sale and purchases and company law.

Holland Beckett Law promotes Jeremy Sparrow Bay of Plenty firm Holland Beckett Law has promoted Jeremy Sparrow to associate. Jeremy practises from both the Tauranga and Rotorua offices. He started his legal career in the firm’s litigation team in 2012 and then worked in London for two years as a litigator resolving commercial and tax disputes. He returned to the firm in January 2018 and specialises in employment, health and safety, civil litigation, criminal law and debt recovery.

Katie Green joins Flacks & Wong Katie Green has joined Flacks & Wong as a senior associate. Katie is an experienced corporate and commercial lawyer, having advised on a range of M&A, private equity

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and capital markets transactions as well as corporate governance matters. Before joining Flacks & Wong she was a senior associate at Herbert Smith Freehills in London and a solicitor at Bell Gully in Auckland. Katie has also undertaken secondments at Carter Holt Harvey, assisting its business units with a range of commercial agreements and transactions.

Wynn Williams appoints partners and senior associates Wynn Williams has announced the appointment of two partners and seven senior associates. Andrew Watkins has been promoted to partner in the national dispute resolution team after joining the firm in December 2018. Andrew is based in the Christchurch office and has over 25 years’ experience specialising in complex relationship property estate matters. Andrew has a special interest in trust law, having presented at numerous national conferences over the last 15 years on its interplay with the Property (Relationships) Act 1976. Rebecca Saunders joins the firm as a partner in the national dispute resolution team. She is based in the Auckland office and specialises in construction law, in particular resolving construction related disputes. Rebecca has broad national and international experience in construction adjudication under the Construction

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Contracts Act 2002, arbitration, court litigation and mediation. Greg Simms joins the Auckland office as a senior associate in the national dispute resolution team. Greg has experience in a broad range of complex commercial litigation matters, arbitration proceedings and regulatory investigations. Having worked in London at a Magic Circle firm for the past five years, Greg also has extensive international experience in commercial disputes and investigations. Kimberley Wong has joined the firm’s national corporate and commercial team as a senior associate, also based in the Auckland office. Kimberley has national and international experience, with a particular focus on mergers and acquisitions, private equity and venture capital investment. Five of the firm’s associates have also been promoted to senior associate. The firm would like to congratulate its five associates promoted to senior associate, who include: Richard Hargreaves is a senior associate in the national dispute resolution team and is based in Christchurch. He has an honours degree in law from Oxford University and was admitted to the bar in England in 2010 and started at Wynn Williams in 2012. Richard is a civil litigator with a background in insurance law. Tiana Ritchie is a senior associate in the national dispute resolution team. Tiana joined the firm in February 2015 after graduating from the University of Canterbury. She works primarily on complex commercial disputes and has developed particular experience in trust law and Māori land law. Tiana is based in Christchurch.

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Nicholas Lawrence is a senior associate in the national dispute resolution team, based in Auckland. He has been with the firm for four years after graduating from the University of Canterbury. Nicholas works on complex commercial disputes and regularly advises on insolvency, insurance, trusts, defamation and regulatory issue. Kirstie Wyss is a senior associate in the national resource management team and is based in Christchurch. She specialises in resource management, environmental and local government law and has particular expertise in advising regional councils on the development and implementation of freshwater management plans. Kate Woods is a senior associate in the national resource management team, based in Christchurch. She worked in London for several years before joining the firm and also spent three years with another New Zealand law firm. Kate has experience in district and regional resource management matters.

Hayden Smith joins Burton Partners as Special Counsel Hayden Smith has joined Burton Partners as special counsel. A graduate of Auckland University, Hayden was admitted in 2005 and has since practised in the field of corporate and commercial law. His principal focus is on mergers and acquisitions, joint ventures, capital raising, commercial contracts and corporate advisory. Hayden has particular expertise in the area of warranty and indemnity insurance.

Promotions at Heaney & Partners Heaney & Partners have announced three promotions, effective from 1 April. Charlotta Harpur has been promoted to senior associate. Charlotta was admitted as a solicitor of the Supreme Court 32

of England and Wales in 2007. She moved to New Zealand in 2009 and was admitted as a barrister and solicitor in December 2011. She is a litigation specialist working with the firm’s insurer and council clients. Kent Perry has been promoted to senior associate. Kent was admitted in August 2009 and worked for Heaney & Co between 2010 and 2012 before heading overseas. He joined the firm upon his return to New Zealand in January 2017. Kent works with the firms’ litigators for their insurer, real estate and council clients. Corbin Child has been promoted to associate. Corbin was admitted in 2012 and worked with a speciality insurance litigation firm until he joined Heaney & Partners in September 2017. He works with the firm’s litigators for their insurer, real estate and council clients.

Norris Ward McKinnon awards 2019 scholarships Hamilton law firm Norris Ward McKinnon has awarded its 2019 University of Waikato scholarships to Thilini Karunaratne and

Phoebe Parson. The scholarships are worth up to $11,000 each and are for students doing postgraduate study in any area of law. Masters student Thilini Karunaratne’s research focuses on issues surrounding privacy, particularly in New Zealand, but she also hopes to compare New Zealand with other jurisdictions such as the UK and India. Phoebe Parson is a PhD student. Her doctoral thesis explores the legal frameworks for managing natural resources in New Zealand, particularly looking at geothermal, fisheries, and Crown-owned mineral resources. Norris Ward McKinnon partner Dan Moore says the scholarships connect students to the real world of law in practice and allow the firm’s staff as practitioners insight into the topics of specialised research going on in the legal services industry.

Anthony Harper acquires and promotes staff Anthony Harper has announced a number of new appointments and promotions. Lucy George has been promoted to senior associate. She has expertise in commercial and regulatory litigation (including financial services regulation). Lucy recently returned from London where she was in-house counsel for a major retail bank. Before moving overseas she worked in the competition, public and regulatory law

Bronwyn Carruthers Shortland Chambers is pleased to announce that Bronwyn Carruthers has joined as a member. Bronwyn is a specialist resource management litigator. She has advised on a wide range of resource management and planning issues with a focus on consenting, plan making, judicial review, designations, declarations and enforcement action. We wish Bronwyn well in her career at the bar. www.shortlandchambers.co.nz

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team at a large firm in Auckland. Tim Grimwood has been promoted to senior associate. Before law he had a varied career in the health sector in the United Kingdom and New Zealand. He was admitted in 2011 after graduating LLB(Hons) at Victoria University and specialises in litigation. He worked in general practice litigation in Rotorua for five years before moving to Christchurch. Harriet Quinlan has been promoted to senior associate in the litigation team. She works on general commercial litigation matters, with a focus on construction and insolvency disputes. Harriet was admitted in 2012 after graduating BA LLB from the University of Otago. She previously worked at a large firm where she acted in a broad range of commercial disputes. Lucy Player-Bishop has been promoted to associate in the litigation team. She has been involved in a broad range of commercial litigation, including claims for breach of directors’ duties, prejudiced shareholder claims, and trust and intellectual property disputes. She has BA and LLB(Hons) from the University of Canterbury and was admitted in 2015. Hailee Forde has joined the firm’s corporate advisory and banking and finance teams as a solicitor. Hailee was admitted in December 2017. Caroline Edwards has joined the firm’s immigration team as a solicitor. She has worked in immigration law for over 10 years, as an immigration adviser and now solicitor.

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Caroline was admitted in 2017 and has an LLB from the University of Canterbury. Oliver Towle has joined the litigation team as a solicitor. He was admitted in 2017 and has an LLB from Victoria University of Wellington. Oliver began his legal career as a junior barrister at an Auckland-based chambers. Hannah Meikle has joined the litigation team as a solicitor. She has moved to New Zealand from the United Kingdom where she worked for large national and international firms. Hannah specialises in litigation and dispute resolution. Tamara Webster has re-joined the retirement village team as a solicitor after a year-long OE in Europe. She has worked in-house in the public health sector in New Zealand and the United Kingdom. Tamara was admitted in 2015 and has BA and LLB(Hons) from the University of Auckland.

Bell Gully welcomes two senior associates Bell Gully has welcomed two new senior associates. Melissa Ahlefeldt specialises in commercial contracting and legal advice across both public and private sectors. She was admitted in 2011 in Australia graduating LLB(Hons) from the Australian National University. Melissa was most recently a senior associate at Ashurst. Courtenay Mercier specialises in employment law and regulatory and legislative compliance across the public and private sectors. Courtenay was admitted in 2005 in Alberta (Canada) graduating LLB from the University of Manitoba. She has worked at several large Canadian law firms, most recently as an associate at Reed Pope Law Corporation since 2013.

Contributing information to On the Move Brief summaries of information about promotions, changes in law firms, recruitment and retirement are published without charge in On the Move (which is also available online). Please send information as an email or MS Word document (no PDFs please) to editor@lawsociety. org.nz. Submissions should be three or four sentences without superlatives and may be edited to conform to the format used. A jpeg photo may be included – along with permission to use the photo.

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PEOPLE IN THE LAW

PROFILE

The Government’s lawman David Parker, Attorney-General BY CRAIG STEPHEN As Attorney-General in Helen Clark’s third and final government, David Parker was the logical choice to take on the role in the Coalition government that was formed in October 2017. This time round, the former Dunedin lawyer and co-founder of the Community Law Centre has several meaty roles in the government: Minister of Economic Development, Minister for the Environment, and Minister for Trade and Export Growth, as well as Associate Minister of Finance. As Attorney-General, he is the principal legal adviser to the Government and a member of the Cabinet. Mr Parker’s predecessor, Christopher Finlayson QC, was, for the bulk of his nine years in the role, also ‘only’ the Minister for Treaty Negotiations – a role that is now fulfilled by Justice Minister Andrew Little. I began the interview by asking Mr Parker how his ministerial roles relate to his role as Attorney-General. “Outside of the law I’ve got three drivers of my political ethic; one is a strong economy, the second is to ensure the fruits of a strong economy are more fairly shared to get egalitarian outcomes, and the third one is to achieve that within environmental limits. I know that to achieve any of these the rule of law is fundamental. Without the rule of law protecting property rights and contractual rights you don’t get investment to grow the economy. Without the rule of law and political input to change laws relating to taxation, training people, immigration rules, etc, you don’t get the right balance between capital and labour and you don’t get fairness between generations. So the law is absolutely essential to that also. “There is equally no doubt that the rule of law is

essential to enforcing environmental bottom lines. Because without it there is always some ratbag who’s willing to push things harder than someone else. Without environmental laws they can out-compete someone on the basis of causing environmental damage that someone else is not willing to cause. “In addition, I have the view that the political space to change things and to maintain community respect for the rule of law and to have respect for the rule of law society must uphold human rights and civil liberties. If you respect the rights of minorities, if you keep government and its institutions on the right side of the law, and you maintain respect for legal institutions and the rule of law, then you have societal confidence in the many institutions that deliver all of those other things you need to have a happy, effective and peaceful society.” So having a legal background is helpful, if not essential, to all the portfolios that you are holding? “There’s no area of law that I studied at university that I haven’t put into place in practice, whether it’s family law, land law, equity, jurisprudence; and understanding the rule against perpetuity is a great thing for any politician to know. So I believe I have a decent understanding of the importance of law to all of those things.” Your predecessor was the Minister of Treaty of Negotiations and Attorney-General and for a spell oversaw the spy organisations, so his role was far more limited than yours. Do you think you might be perhaps over-stretching yourself a bit? “No, no, those roles can be done by different people, and often have been. Michael Cullen was Minister of Treaty Negotiations and Minister of Finance. Although he was, for a while, Attorney-General those roles did not coincide all the time. When I was Attorney-General 35

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for a brief period in the previous Labour government I wasn’t Minister for Treaty Negotiations. So there’s no reason at all they need to be held by the same person at the same time.” With the review of so many different areas of justice, you presumably will have some input into that. “One of the things that both Andrew Little and I agree on is that the Family Courts are in a parlous state. There were changes made to the operation of the Family Court that have resulted in a lot of injustice. The system is clogged with too many exparte orders followed by lengthy delays where parties who have been subject to an ex parte order are not able to get before a judge to have their issues tried in a substantive way.” In terms of your role as Attorney-General what’s your thoughts on the system of appointing QCs? Do you think that needs to be reformed, such as appointing non-barristers as QCs? “No. People should be practising at the bar to be appointed a QC. I don’t necessarily have a strong view that there should be a separate Bar, although I do know that people do. But in terms of the method of appointing QCs within the existing limits to who can be appointed a QC, I think the system is okay.” Any thoughts about going back to the previous Labour government change of having Senior Counsel? “I was happy enough for that change to be made. I’ve personally never accepted the idea that there is somehow a higher ethical standard of people who are at the separate Bar compared with the people who are within legal firms. If there were, well, they shouldn’t be able to appear in court. I don’t accept they’ve got some inferiority about them as a consequence of their different standing or pressures within legal firms compared with at the separate Bar. And I’m also conscious that one of the reasons why those rules were abandoned when the New Zealand legal system was set up compared with the UK system was that it was pretty expensive having compulsory separation, having to have a solicitor and a barrister. It’s not a high priority.”

Do you foresee any changes to the appointment of judges? “There is a pre-condition to the appointment of anyone to a senior position, including as a judge, that they are competent. There are lots of competent people 36

Access to justice is a major issue. Does New Zealand provide that for all its citizens? “The courts are meant to serve the interests of the people; if people cannot use them to resolve their disputes in an affordable and civil manner then they’re not meeting their social purpose and I do have a concern that the courts, particularly the civil courts, are increasingly a place than can’t be accessed by ordinary people. With other people I was one of the founders of the Dunedin Community Law Centre and the CLCs are one way of providing legal assistance to people. We (the Coalition) gave a substantial increase in funding (22%) in the last Budget for community law centres. But that is not the only way. The profession and the judiciary and all of those who have an interest have always got to fight for processes that are not too complex relative to the amount that is at issue so as to achieve affordable access to justice. Legal aid is part of the answer but it’s not the only answer; efficiency of process is important.” Do you think the Bill of Rights should be strengthened?

Do you envisage any changes to the role of Attorney-General? “No, it’s well settled and works well. A lot of the roles of the Attorney-General are just to be there as a guardian of our conventions. I see one of my most important roles as to make sure the conventions, the separation of powers, the protection of judges from criticism from, especially the Executive, but more generally Parliament, is maintained. They can’t defend themselves.”

in society and they come from diverse backgrounds and it would be good if our benches were more diverse.”

The courts are meant to serve the interests of the people [...] and I do have a concern that the courts, particularly the civil courts, are increasingly a place than can’t be accessed by ordinary people.

“I don’t believe the Bill of Rights should be extended to social rights or environmental issues for two reasons: one, the distribution of resources within society is a highly political question that is best taken by politicians. Second, politicians are elected every three years and can be thrown out every three years, and if decisions are made on those issues that are wrong, and don’t have sufficient backing within society. This is a check and balance. Politicians are much better placed to make those complex trade off decisions than the courts.” ▪

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Auckland barrister, homeless advocate and a judge champion new night shelter for homeless BY NICK BUTCHER

An Auckland barrister, a homeless advocate and a District Court Judge are driving the development of a new night shelter for homeless people, due to open before the winter. Queen Street in the central city is often dotted with people begging and sleeping rough all year round. Many of them have mental health and addiction problems. Barrister Jo Wickliffe is used to defending people who cannot do it for themselves, including homeless people, and the night shelter initiative is another strand of her advocacy work. A trust called NEST (Night Emergency Shelter Trust) has been formed and a Board of Trustees established which includes Judge Grant Fraser and Michelle Kidd who are both advocates for the homeless. While the Queen Street homeless are the visual part of the problem, Ms Wickliffe says there are many others who are living and sleeping in areas that many people would be less aware of. “Often you won’t see the long-term homeless people. They’re not on Queen Street. They’re hidden in places where they can’t be easily found. Some are sleeping in bushes at Albert Park. I know of a man who sleeps in rubbish skips. I know of a pregnant woman sleeping rough and another woman with two children who was sleeping near the Auckland District Court. She had her children on mattresses with a duvet. It’s a terrible situation for anyone to be in,” she says.

I know of a pregnant woman sleeping rough and another woman with two children who was sleeping near the Auckland District Court. She had her children on mattresses with a duvet.

▴ Jo Wickliffe

▴ Judge Grant Fraser

Marae-style accommodation The Trust has secured a three-storey building for the Night Shelter on Nelson Street in the central business district, and they have a project manager who’ll deal with resource consent issues and the fit-out of the premises. The first floor will be for men and can sleep 80 people in a marae-style open plan. The second floor will be for women and will cater for 40 people, also marae style. And there’ll be security guards on duty each evening. “The security is to ensure the safety of all who are

▴ Michelle Kidd 37

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sleeping at the shelter. They’re not safe on the street and need to feel safe at the shelter. There will also be a building manager who lives on-site,” she says. Ms Wickliffe says homeless people who want to stay at NEST will have to hand over any drugs, alcohol or weapons such as knives that might be in their possession. “They won’t get these items back. Along with their bags, each person will be searched to ensure they are not a threat to the safety of other people at the shelter.” The night shelter doors will open at 8pm and people will be expected to leave the building by 8am the following day. Ms Wickliffe says the shelter will complement the Auckland City Mission redevelopment. “This facility is not being built to compete with it. It’s going to be there to support it. They’re not going to build a night shelter in their new facility. That’s not a criticism as they’re doing other great things for homeless people including providing food,” she says. While the night shelter is on target to open before winter, the Trust will appeal for corporate funding, Givealittle crowd funding, along with applying for Auckland City Council and Government support. It’s estimated that running the NEST will have an annual cost of between $800,000 and $1 million. Ms Wickliffe is also encouraging other lawyers to get involved in the Trust on a pro-bono basis. “We need an employment specialist because we’ll be hiring a general manager. We also need a lawyer with expertise in public liability and contract law. We need them now,” she says. Already they have secured Ian McCombe, a partner of Brookfields who specialises in lease and trust law, Edwin Sheppard, a solicitor at Berry Simons Environmental Law who specialises in resource management law, and Anton Trixl, a partner at Anderson Lloyd who specialises in employment and contract law, along with another lawyer who is a specialist in public liability law.

The trustee judge Some people might not expect a judge to be involved in a project that benefits the homeless. But Judge Grant Fraser leads the Family Violence Court in Auckland and Manukau. He regularly sees homeless people in his courtroom, so he has personal insight into their lifestyle and living conditions. “We spend a lot of time outside of that court reaching out to the community. Part of that responsibility for me was to take on the job of being a trustee for this cause. “Being subjected to violence is, sadly, something that regularly happens to homeless people. But if you consider the stressful situation that homeless people are operating under and the needs that they have, which are often unmet, it’s hardly surprising,” he says. Judge Fraser says getting people off the streets into accommodation, even if it is only temporary, limits the night time opportunities for violent offending against them. “If we can get people off the streets and into safe accommodation, then we are achieving our objective. They’re free from molestation by city thugs.” 38

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“If we can get people off the streets and into safe accommodation, then we are achieving our objective. They’re free from molestation by city thugs.”

Judge Fraser’s involvement will be ongoing. “I’m here for as long as I’m needed. I’ve been a judge for over 20 years. I had 12 years in the Family Court, so I’ve seen how desperate the need is for a facility like this.”

‘Homeless people are not the problem, they’re the result of the problem’ It’s a sobering statement but Michelle Kidd, who was awarded a Queen’s Service Medal for her tireless work for the homeless, stands by it. She has had a 20-year selfless career standing up for the homeless. She knows them, and they know her. She is one of the trustees with the NEST project. Rising daily at 4:30am to cook porridge for the homeless of South Auckland and then go on to act as a support person at the Auckland and Manukau District Courts for homeless people is all part of a normal day for Ms Kidd. As she explains, homeless people are vulnerable to so much more than just cold winter nights. “Both women and men are exposed to all forms of possible abuse. This includes being physically attacked, including women and men being raped. This can happen on the streets of Auckland. I’ve been trying to get a decent night shelter in Auckland for the past 20 years. This will be an excellent facility, not a dog box. People will be safe and respected,” she says. There have been night shelters in Auckland in the past but they haven’t proved sustainable.

Long-term plan: open more shelters The long-term plan, Michelle Kidd says, is to open more night shelters in other areas of Auckland, as homelessness is not just a central business district problem. “People are quite generous in Auckland, but as one homeless person said to me, ‘they’re (the homeless) like pigeons, in that people want to feed us but not take us home’,” she says. Ms Kidd says the night shelter will provide basics for people that most of us take for granted. “People will be able to go to the night shelter, lay their head down and feel safe. Can you imagine what it is like not showering for months on end?” ▪ Lawyers keen to contribute some time to the project can contact Jo Wickliffe at  jo@jolaw.co.nz

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PEOPLE IN THE LAW

PROFILE

The Innovators Erin Ebborn LawFest organiser Andrew King continues a series of interviews with key legal professionals with their innovation and technology stories. What does legal innovation mean to you? Legal innovation, to me, is the means of progression a law firm (or lawyer) uses to improve their service offering and profitability. What role does technology play in innovation? Technology is an essential part of innovation: that is where efficiency is realised. For almost its entire history, humankind has used one tool or another to increase the output of the individual person. Technology is a multiplier of effort, meaning that one person is able to produce several times more output than normal. For example, a person harvesting 100 trees with logging machinery will be more efficient than if the person used a chainsaw, though a chainsaw is more efficient than using an axe. What pressures are organisations facing in the delivery of legal services? The pressures facing organisations in the delivery of legal services are mainly external: a tight labour market; changing social values, greater competition and substitutes; consumer sensitivity to price; greater expectations as to speed. Internally there is the pressure of partners wanting to exit firms, so finding the cash to pay them out. In a regulation sense, the restrictions around third-party investment and diversification of governance boards. Some of the change is well overdue (eg, #metoonz). What developments do you see in how legal services are delivered? More video-enabled services allowing lawyers to beam in to remote areas, or work away from the law firm’s location. A revamp of what practice management software does with more focus on CRM, document management functionality and a move away from hourly billing. Some use of enhanced machine learning services provided from offshore – this is now possible due to the settlement of the Microsoft v US Government case (with the CLOUD Act passed into law last year). What opportunities has legal innovation brought to you?

Legal innovation has enabled me to expand into other parts of the country fairly quickly. For example, hiring lawyers to work in Blenheim has been challenging, so we don’t yet operate a branch in Blenheim. Our lawyers from Christchurch and Timaru service the area, which accounts for around 20% of our caseload. We’ve grown our business at a good clip and we have done this almost exclusively on legal aid. Surely, this is evidence that innovation has a direct relationship with efficiency! We are taking all the profit we realise and sink it back into the business to continue this growth. For those who don’t know, legal aid fees are between 30% to 50% of what we charge privately. So we also have the choice of charging what other law firms charge, and returning hyper profit, or offer competitive pricing strategies to take market share from other firms. What are some of your tips to start innovating or developing an innovative mindset? Read some books. I recommend The Goal by Eliyahu M. Goldratt; Our Iceberg is Melting by John Kotter, and; Competitive Strategy: Techniques for Analyzing Industries and Competitors by Michael E. Porter. If you don’t have your head firmly in the strategic space, you won’t be able to effectively choose your technology path. Hire someone who knows the law profession and technology. Don’t try to feel your way around … it’s too important a decision to just go with who has the shiniest brochures, or what vendors tell you that you need. You need to project future need rather than focus on instant solutions. Why is it important for legal professionals to continue to learn about legal innovation and leveraging technology? The biggest challenge firms face around innovation is about the gaps that exist between the profession and other sectors of business; so the critical task to consider is need identification. Because law firms have weakened governance structures (due to any non-lawyer being statutorily banned from partnership or directorship status) there is a tendency to have a low risk horizon, resulting in a lack of strategic insight. ▪ Erin Ebborn has been a speaker at the legal innovation and technology event LawFest. 39

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Can-ada we do? Yes, says campaigner as NZ prepares way for disability legislation BY CRAIG STEPHEN A highly-regarded blind Canadian lawyer says New Zealand needs a new disability access law to tackle the lack of access for the estimated one million people with a disability. David Lepofsky was invited by the Blind Foundation to visit New Zealand to share his experiences and expertise on developing accessibility legislation and standards in Canada. The Blind Foundation is one of 12 disability groups that form the Access Alliance lobbying Paraliament to enact an Accessibility Act which would provide accessibility in all areas of life and champion accessible workplaces, employment and education. Mr Lepofsky was awarded the Order of Ontario in 2007 for his work with people with disabilities which led to the establishment of the Ontarians with Disabilities Act 2001 and the Accessibility for Ontarians with Disabilities Act 2005. During his time in New Zealand at the end of last year, Mr Lepofsky spoke to a number of politicians and advocates including the Minister for Disability Issues, Carmel Sepuloni, assistant Speaker of the House (and former disability worker) Poto Williams, councillors, disability advocates and city planners. And he picked up a feeling that things are changing, and quickly. “What I’ve sensed is a similar excitment to the campaign and optimism in Canada. There’s a government in power that made accessibility commitments during the 2017 election, and there’s a sense of opportunity. “In most communities it isn’t just about the built environment, it’s also about the digital environment where we can face barriers, in the workplace and all sorts of places. But obviously the built environment is a crucial place. So, when disabled people visit somewhere the structures are already there. “Christchurch is in a unique situation, because of the terrible earthquakes in 2011. They’re rebuilding massively and the 40

“Firstly, one in four New Zealanders have an impairment, whether a physical or mental disability, and everyone else will have an impairment at some point in their lives, so these accessibility issues will affect most New Zealanders.”

leadership of the disability community has said ‘if you’re rebuilding, get it right’. That doesn’t always happen so that’s where a strong disability access law can be used to ensure that is done correctly.”

The need for new legislation He says it’s hugely important that New Zealand has an Accesibility Act. “Firstly, one in four New Zealanders have an impairment, whether a physical or mental disability, and everyone else will have an impairment at some point in their lives, so these accessibility issues will affect most New Zealanders. “Secondly, better accessibilty is great for business. This is a beautiful country that thrives on a vibrant tourism industry. Well, there’s upward of a billion people with disabilities around the world and they want to visit places that are accessible. “I stayed in four different hotels in four different parts of New Zealand, and not one of them had the simplest requirement of braille numbers on the hotel room doors or the elevator buttons. That’s pretty basic stuff. Now, who would stay in a hotel if they can’t operate the elevator or find their own hotel room? “Some people think that when you talk about accessibility that it’s really expensive to carry out upgrades but it’s actually not that costly, and it’s definitely worth it. Otherwise you lose out on tourist business. “And the final thing is New Zealand needs more professionals to do accessibility infrastructure – designers, urban planners, software designers, website designers and so on. There’s a huge value in the government funding the training of new professionals in planning, built environment design and digital design in accessibility. Not only would they serve the New Zealand market but they can then sell their services internationally; if a company or organisation anywhere in the world wants someone to design their website to meet the growing international standards then there’s people here who can design it for them. They don’t need to travel to that country to do it, they can do it online.” During his time in the country, Mr Lepofsy noted several areas where we fail disabled people in comparison to other jurisdictions. “The United States is way ahead of most countries, both in terms of the strength of its legislation and its enforcement. There’s some strong things in Israel’s legislation – I was there recently and stayed in a couple of hotels and both had braille in the elevators,

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and they’ve got a voice to tell you which floor you are on. “New Zealand is in a position to catch up those countries by looking at who’s doing it right, and learn from it all. One thing New Zealand is doing right is it has more of those beeping pedestrian signals than in Canada. They’re not everywhere but they’re on a lot of streets and street corners.”

Overcoming the odds Mr Lepofsky was partially sighted until the age of 20 when he lost all his sight. However, he qualified as a lawyer and for 33 years was Crown counsel for the Government of Ontario. He retired in 2015 and has since become a part-time law professor at the University of Toronto and the Osgoode Hall Law School. He is the co-chair of Barrier-Free Canada, a community coalition that has advocated for the Canadians with Disabilities Act. He was awarded the order of Canada in 1995 and the Order of Ontario in 2007. Mr Lepofsky says it is not unusual for a sight-impaired lawyer to be succesful and there shouldn’t be any barriers to someone becoming admitted and being able to practise. “There are a lot of blind lawyers around the world; in the United States there are two separate organisations for blind lawyers. The route to gaining experience and skills have become incredibly easier. When I was in law school, which was 40 years ago, I used to have to get books recorded on to audio cassette and have human beings read stuff to me. We used typewriters but I couldn’t proofread what I was writing. “Forty years on we have computers and iPhones that talk, and we have document scanners. If I was given a document in the courtroom I can take a picture of it on my phone and 30 seconds later the phone is reading it to me. And, of course, we have access online to electronic text and legislation. “The capacity to operate in an environment of law where it’s all about documents and written materials is now immensely easier. I’ve seen this transformed in my lifetime.”

Coalition support Dianne Rogers, the coordinator of the Access Alliance, says there will be changes as the Government is committed to making them. “The Minister (Carmel Sepuloni) has raised this at Cabinet level; all three parties in the coalition government are committed to doing something. We were successful last year during the pre-election period to getting this idea in the party manifestos.” She says 1.1 million people – about a quarter of the New Zealand population – have impairments, a number that will significantly rise over the next few decades with an ageing population. And New Zealand needs to wake up to the fact it is way behind other OECD nations in how it provides access for disabled people. “We are 30 years behind the rest of the world. We have had really poor regulations and it’s been left to the goodwill of organisations to do something for disabled people, ie, removing barriers, transport improvements, easy to access websites and so on.” She says the proposed legislation will “scale up and fill the gaps” in existing statutes on disabilities.

▴ David Lepofsky was awarded the Order of Ontario in 2007 for his work with people with disabilities which lead to the establishment of the Ontarians with Disabilities Act 2001 and the Accessibility for Ontarians with Disabilities Act 2005 “The Human Rights Act is weak in terms of achieving systemic change based on complaints. Its disputes resolution mandate deals with claims individually through mediation and outcomes are usually confidential. This new legislation that the 12 member organisations in the Access Alliance – and their supporters – are proposing will be a game-changer.” In December, a first step was taken to improving accessibility when Cabinet approved a work programme to explore how full accessibility for disabled people can be achieved. The work programme will also focus on improving accessibility for other groups such as seniors, carers of young children, people with English as a second language, and those with temporary injuries. ▪ For more information on the campaign for an Accessibilty Act visit  accessalliance.org.nz 41

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The Viagogo case The difficulties of seeking interim injunctive relief against an overseas defendant BY JOHN LAND How do you enforce New Zealand consumer law against the operator of an international website? The Commerce Commission claims ticket buyers are being seriously misled by Swiss-based Viagogo. However, it has failed in its attempt to obtain an interim injunction because Viagogo has refused to accept formal service except in Switzerland. Despite the lack of formal service, Viagogo’s lawyer appeared in court to argue the injunction application. Viagogo argued that the court had no jurisdiction because of the lack of service. Courtney J, in a judgment dated 18 February 2019, agreed: Commerce Commission v Viagogo AG [2019] NZHC 187. Meanwhile, on 5 March 2019 the Competition and Markets Authority in the UK announced it would be seeking contempt of court orders against Viagogo for failure to comply with previous court orders made against it. On 4 March 2019 the Government released a discussion paper “Ticket reselling in New Zealand” on which it has sought submissions by 18 April. The government proposals include setting a cap on ticket resale prices (to prevent scalping), the imposition of information disclosure requirements in relation to the resale of tickets (such as disclosing the face value price of tickets being resold), and a prohibition on the use of automated software (bots) used by scalpers to purchase large numbers of tickets for resale. Given the huge number of complaints made to the Commission about ticket resellers (particularly Viagogo) there is a real question about whether there is Viagogo consumer harm that needs addressing represented in further regulation. that there The big issue though, in my view, is just was “only 1 ticket left” to how you enforce such regulations when a performance the resellers of tickets and ticket reselling of Peter Pan websites, like Viagogo, are based overseas. What the MBIE review really needs to conand that tickets were sider is what enforcement mechanisms and “likely to sell law changes are required to ensure that out soon” overseas traders cannot just thumb their when in noses at New Zealand laws and regulators. fact, at the In my view what should be considered is to provide the Commerce Commission time, there were at least with rigorous stop order powers anal473 tickets ogous to those held by the Financial available Markets Authority. 42

The Commission also alleged that Viagogo made misleading representations that Viagogo could guarantee the validity of tickets (when that was not the case) and about other matters including the pricing of tickets

The Commission’s proceeding against Viagogo The Commerce Commission originally issued proceedings against Viagogo in November 2018 alleging that Viagogo was misleading customers on its website in a number of respects. The Commission alleged that Viagogo made a number of representations that tickets for particular sporting, music and entertainment events were in short supply, when they were not. For example it alleged that Viagogo represented that there was “only 1 ticket left” to a performance of Peter Pan and that tickets were “likely to sell out soon” when in fact, at the time, there were at least 473 tickets available to the relevant performance. The Commission said that Viagogo did not make it clear that its representations relating to availability of tickets were intended to relate to availability on the Viagogo website only as opposed to general availability of tickets. The Commission also alleged that Viagogo made misleading representations that Viagogo could guarantee the validity of tickets (when that was not the case) and

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jurisdiction to determine the injunction application. Courtney J accepted this argument. She held that the court had no jurisdiction until Viagogo had been formally served.

Approach to injunction applications where there is a protest to jurisdiction

about other matters including the pricing of tickets (as the initial web pages that customers accessed did not quantify fees that were added to the price of the tickets). Viagogo did not cooperate with the Commission in accepting service. It did instruct solicitors in New Zealand but those solicitors declined to accept formal service of the proceedings. As a consequence the Commission was forced to seek to effect service in Switzerland through diplomatic channels. The Commission advised the court that such service was likely to take about six months. Given the expected delays in service, the Commission decided that it should seek interim injunctive relief. It contended that if interim relief was not granted there was a significant risk that Viagogo would continue to breach the Fair Trading Act by making representations of the same kind. Given the lack of formal service, the application for interim injunction was made on an ex parte basis. However, Viagogo’s solicitors were provided with copies of the proceedings and the injunction application.

Viagogo argues no jurisdiction on the basis of no formal service Despite the lack of formal service, Viagogo’s solicitors appeared at the interim injunction hearing on a “Pickwick” basis (ie, the application was technically still an ex parte application). They also appeared on the basis that their presence should not be taken to be an acceptance of jurisdiction by Viagogo. Viagogo’s solicitors advised that the company intended, once formally served, to file an objection to jurisdiction. They then argued that in these circumstances the court had no

Where a protest to jurisdiction is made, the Court of Appeal has held that the protest should be determined before determining any interlocutory applications (Advanced Cardivascular Systems v Universal Specialties [1997] 1 NZLR 186 at 189). That approach has also been followed where the interlocutory application in question is an application for interim injunction (Rimini Ltd v Manning Management and Marketing Pty Ltd [2003] 3 NZLR 22 at [39] per Randerson J). As Randerson J said in Rimini, if the court was to entertain an interlocutory application, it would necessarily be accepting jurisdiction to hear and determine the proceeding. In some cases a court has been willing to hear a protest to jurisdiction and application for interim injunction together (for example, this effectively occurred in YPG IP Ltd v Yellowbook.com.au Pty Ltd (2008) 8 NZBLC 102,063).

Approach to injunction applications where an overseas defendant has not been served What then is the situation if the proposed defendant has not yet filed a protest to jurisdiction because it has not been formally served, but says that it intends to file such a protest? Courtney J suggests that, in that situation, the court has no jurisdiction to determine an interlocutory application. A party is only brought within the jurisdiction of the New Zealand courts by being served (Courtney J at [12] and [13]). Courtney J referred to the earlier decision of Kós J in Discovery Geo Corporation v STP Energy Pte Ltd (2012) 21 PRNZ 381. In that case, as in the Viagogo case, the respondent to an application for interim orders had not been formally served but appeared on a Pickwick basis and indicated that jurisdiction would be protested. 43

Kós J said (at [39]) “First, jurisdiction at heart is dependent on valid service on the defendant .… Of course, Mr Kalderimis has received copies of the application and was able to file a comprehensive response, albeit under protest. But that is not service in terms of the Rules. Where service offshore is involved, some rectitude is required. It involves, as has often been said, an exercise of sovereignty within the country in which service is effected.” Kós J held in Discovery Geo that the intended protest to jurisdiction should be heard before any application for interim relief was heard or granted. Courtney J accepted the argument of Viagogo that rule 5.49 of the High Court rules only contemplates the filing of a protest to jurisdiction after a defendant has been served. On that basis, until a defendant is served it is not possible for a defendant’s proposed protest to jurisdiction to be considered.

The likely outcome of a protest to jurisdiction One can understand the frustration of the Commerce Commission. Do we really have to wait and see whether a court will accept the protest to jurisdiction? Surely this is a case where the court is likely to uphold the jurisdiction of the New Zealand courts? The claim is one by the New Zealand consumer law regulator to enforce the New Zealand Fair Trading Act, against a company whose website is advertising the sale of tickets to performances and events in New Zealand, and whose representations are directed to and relied on by New Zealand consumers. In the case of a protest to jurisdiction filed under rule 5.49 the ultimate issue for a court in deciding whether to 44

assume jurisdiction (under rule 6.29) will be “whether the Court is satisfied that there are sufficient grounds for it properly to assume jurisdiction” (Kuwait Asia Bank v National Mutual [1989] 2 NZLR 50 (CA) at 54. The Commission would need to establish a good arguable case that the proceeding can be served without leave under one of the paragraphs of rule 6.27, that there is a serious issue to be tried on the merits and that New Zealand is the appropriate forum for the trial. Here it would seem that the Commission could serve without leave under rule 6.27(2)(d)(ii), and/ or rule 6.27(2)(j). The extensive affidavit evidence filed by the Commission in support of the injunction application would likely satisfy the requirement that there is a serious issue to be tried on the merits.

Representations made in NZ The international aspect to the representations would not prevent a finding of a serious issue on the merits. Viagogo’s representations were largely made on a website outside New Zealand. However, the representations were addressed to consumers in New Zealand. In those circumstances, the representations can be said to be made in New Zealand (ACCC v Valve Corporation (No 3) [2016] FCA 196). Further, in any event, s 3 of the Fair Trading Act makes it clear that the Act applies to overseas conduct if the defendant is carrying out business in New Zealand and the conduct relates to the supply of goods or services in New Zealand. Viagogo, by offering its service to New Zealanders, would seem to be carrying out business in New Zealand and the relevant conduct relates to the supply of goods or services (the supply of tickets or the rights to tickets) in New Zealand. Finally, New Zealand must surely be the appropriate forum for a trial of an action. Indeed in YPG IP Ltd v Yellowbook.com.au Pty Ltd (2008) 8 NZBLC 102,063, at [25]-[27] Allan J, in rejecting a challenge to jurisdiction made by Australian respondents to an application for an interim injunction under the Fair Trading Act, commented (at [25]) “… the Fair Trading Act is New Zealand legislation, which targets activities within New Zealand. Foreign parties which trade in New Zealand, or carry on a business which affects

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Conclusion New Zealand businesses, become subject to the provisions of the Fair Trading Act 1986. Australian Courts have no jurisdiction to deal with claims brought under that statute” and (at [27]) “I was satisfied that this Court, and only this Court, has jurisdiction to deal with the plaintiffs’ claims, and that the defendants’ challenge to the jurisdiction of this Court must be dismissed”. Accordingly, the Commission’s case to establish jurisdiction appears strong.

The judge says it’s all about service, not jurisdiction However, Courtney J noted that just because the conduct was amenable to the jurisdiction of the court, that did not, of itself, bring a defendant within the jurisdiction of the court. In the judge’s view the essential problem for the Commission was not whether an objection to jurisdiction had been filed or merely intimated, but the fact that Viagogo had not been served (Courtney J at [13]). But is that right? Ex parte injunctions are commonly granted without it being suggested that there is no jurisdiction to do so. In fact, they are specifically provided for in rule 7.4.6 of the High Court Rules. Freezing orders (Mareva injunctions) have often been granted against overseas defendants without notice. If there is a problem with the granting of an interim injunction in the case, then I would suggest the problem can only arise for the reason suggested by Kós J in Discovery Geo, ie, because there is an intimated protest to jurisdiction which should be heard before any interlocutory application. The lack of service by itself should not be fatal.

Substituted service in relation to overseas defendants Courtney J did say that there might be circumstances in which genuine urgency prevented formal service being effected before an application was dealt with. In those circumstances, she suggested a plaintiff should apply for substituted service. Rule 6.8 of the High Court Rules allows for substituted service where reasonable efforts have been made to serve proceedings by a method permitted under the rules and “either the document has come to the knowledge of the person to be served or it cannot be promptly served”. The Court of Appeal has confirmed that the court can order substituted service in respect of an overseas defendant – Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675 at [13]. The English Court of Appeal made similar comments in Cecil v Bayat [2011] 1 WLR 3086 at [68] where Stanley Burnton LJ suggested that substituted service on an overseas defend[...] the ant might be justified by facts specific to Commerce the defendant including “where an urgent Commission application on notice for injunctive relief needs the is required to be made after the issue of ability to issue proceedings”. stop orders However, it is not clear that substituted in relation service is an answer in relation to Viagogo. to practices Substituted service would likely under rule which 6.8(2) be treated as having been effected in seriously Switzerland. The High Court rules provide breach that service will be invalid if effected conconsumer trary to the law of the place where service laws, including is effected (rule 6.32(4) and see also Abela stop orders v Baadrani [2013] 1 WLR 2043 (UK Supreme to cease Court) at [24]). It is apparently contrary to conducting the Swiss Criminal Code to serve documents business in other than through consular channels. New Zealand

The difficulty in the Commission being able to obtain an injunction order against Viagogo demonstrates a gap in the law. The experience of the UK regulator in having Viagogo not comply with court orders is also concerning. The current MBIE discussion paper on ticket reselling misses the real issue. That is the ability of a New Zealand regulator to effectively enforce New Zealand consumer law against overseas web-based services. In my view, the Commerce Commission needs the ability to issue stop orders in relation to practices which seriously breach consumer laws, including stop orders to cease conducting business in New Zealand while offending practises continue. The Financial Markets Authority (FMA) has similar powers under ss 462 and 463 of the Financial Markets Conduct Act 2013 (see Land “FMA makes first stop order”, LawTalk 871, 14 August 2015, 26-27). The FMA’s powers extend to situations where a product disclosure statement is misleading and allows the FMA to prohibit offers and sales of financial products while the order is in force. The timeframes for the exercise of such powers are short (five working days under s 475 though even this time period can be shortened under s 476) and the procedure is simple. The process is certainly not unwieldy and impractical like the Commission’s own former cease and desist powers under s 74A of the Commerce Act 1986 (now repealed by the Commerce Amendment Act 2018). The Commerce Commission should have similar stop order powers. The law could also provide for other means of effective notice of such stop orders other than just personal service. Under the FMC Act all that is required is “written notice” both of intention to make a stop order, and of the order itself – ss 475 and 477. Further, the law could require cooperation in the enforcement of a stop order by internet service providers and other parties who are given notice of the order. Safeguards would, of course, be necessary in terms of the ability for parties subject to such orders to be able to apply to court for discharge or variation of the orders. ▪ John Land is a Senior Competition Law Specialist and Commercial Litigator at Bankside Chambers in Auckland. Formerly a partner of Kensington Swan for 20 years, he can be contacted on 09 379 1513 or at  john.land@bankside.co.nz 45

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Harmful digital communications BY TARYN GUDMANZ Process Outline The Harmful Digital Communications Act 2015 (HDCA) was intended, among other things, to protect minors from the harm arising from cyberbullying. However, gaps in the process may expose minors to further harm in the course of dealing with a complaint. This article is primarily concerned with the situation where both the complainant and the defendant are minors, and there has been inappropriate online behaviour from both parties. This is not an uncommon situation. There has been very little civil litigation involving the HDCA, and even less involving minors. The focus when the bill passed through Parliament was on the criminal side. Where civil litigation and minors was considered, the focus was on a minor who was the victim. These factors have combined to create uncertainties.

Practicalities under the HDCA The system is intended to be speedy and user-friendly. It also appears that it is intended to be able to be used easily without legal advice. 46

The first port of call is a complaint to Netsafe (the only approved agency under the HDCA) via an e-form (www. netsafe.org.nz/report). Netsafe then evaluates the report and contacts the complainant with his/her options, and tries to resolve the issue. Netsafe cannot impose a penalty. If the complainant is not happy with the outcome from Netsafe, s/he can apply to the District Court for orders via an e-form on the Ministry of Justiceâ&#x20AC;&#x2122;s website, under the tabs Justice Sector and Policy / Key Initiatives / Harmful Digital Communications. There is no filing fee. The court attends to service of the documents, including a notice of proceedings with a hearing date. The application may be made on notice or without notice â&#x20AC;&#x201C; ticking a box is all that is required. Where the application is on notice and the alleged perpetrator wishes to defend the matter, s/he must complete a notice of opposition. This must be filed no later than three working days before the hearing date. The parties then attend the hearing and make submissions.

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Where orders are made without notice, the defendant is entitled to be heard on the interim orders made, and needs to complete a form requesting to be heard. Additionally, either party may apply for variation or discharge of the interim orders. It would seem prudent if the defendant is opposing interim orders to also file a general notice of opposition, as the interim orders may not cover all the orders sought. Although the process is intended to be speedy, it is recommended that you check with the court whether the hearing date is a call or a substantive hearing date.

Minor Complications Litigation Guardians The HDCA is drafted in a way that takes into account the minor status of the complainant only. It allows for a parent or guardian or professional leader of a registered school (with the affected person’s permission in the latter case) to bring an application on the affected person’s behalf. There is, however, no provision for a parent or guardian to respond on the defendant’s behalf if the defendant is a minor. A minor must be represented by a litigation guardian in court proceedings pursuant to Rule 4.31 of the District Court Rules. A parent or guardian must therefore make an application to be appointed as litigation guardian under Rule 4.35. This carries a filing fee of $250. Accordingly it is free for an applicant to make a complaint, but not for a minor respondent to defend him/herself.

Name Suppression There is provision under section 19(4)(c) of the HDCA for name suppression for any person. It is recommended that when any party is a minor, name suppression be sought. If the matter was being dealt with under the criminal provisions of the HDCA, it would be dealt with in the Youth Court and name suppression would be automatic (in fact, minors younger than 14 are not subject to prosecution under the HDCA pursuant to the Oranga Tamariki Act 1989). Further, non-compliance with an order is an offence under section 21 of the HDCA. Conceivably, therefore, if a minor failed to comply with a civil order, then s/he could be subject to criminal proceedings – in the Youth Court, with name suppression. There is no restriction on age in civil law. Very young children could conceivably have their names part of the publicly searchable register for the rest of their lives for foolish words written when they were very young. The author is aware of children under 14 who have appeared before the court. Neither the HDCA nor the Harmful Digital Communication Rules 2016 set out the principles applying on a name suppression application. Accordingly the general civil principles apply. These were set out by the Court of Appeal in Y v Attorney-General [2016] NZAR 1512. While open justice is the starting point and “sound reasons” are needed to displace this, “exceptional” or “extraordinary” circumstances are not necessary. The court must strike a balance between the competing interests, considering whether the public will be able to

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understand the judgment. Of note is that while defendants have a direct interest in the outcome, they did not choose to commence the proceedings.

Law reform Both the Law Commission and Parliament were concerned to ensure that young people were not criminalised under the HDCA. But the focus on the criminal law appears to have allowed the less desirable consequences of civil law to slip through unnoticed.

Service One undesirable consequence relates to service of documents. Minor defendants have no right to be represented by a parent/ guardian until a litigation guardian is appointed. This occurs only after proceedings are served. As a consequence, children are being served with proceedings by court bailiffs. The author is aware of a case where a 13-year-old was served. There is no suggestion that the bailiffs did not, and will not, act properly and sensitively. Yet, how terrifying and bewildering for parents to have an officer of the court arrive on their doorstep and require them to find their child so that court proceedings can be served on them. And what of the effect on the child? I see two options to deal with this: service on the parent/ caregiver, or service via Oranga Tamariki. Option one could create difficulties in establishing who the parent or guardian is, and create scope for argument about effective service. Swift action is important in HDCA proceedings. Service could be on an adult with whom the child resides, with that person then deemed responsible for responding to the application. They could discharge that obligation by providing the document to the parent/guardian within a specified short timeframe. This would also remove the need to make a separate application for appointment of a litigation guardian (and payment of the filing fee). Option two may well carry with it its own delay difficulties and create an administrative burden for Oranga Tamariki. Oranga Tamariki may also become involved with a family that would otherwise be unknown to, which may be unnecessary (and again, an administrative and financial burden). Neither the But presentation of documents by HDCA nor Oranga Tamariki may be viewed as the Harmful less threatening than presentation Digital by a bailiff, and this may make it Communication easier to obtain information from Rules 2016 the child. A terrified child may set out the lie to parents and the court in a principles misguided attempt to avoid getting applying into further trouble. on a name Each option has its problems, but suppression overall, option one would appear to application. be the most efficient and lays less Accordingly costs upon the legal system (noting the general that civil actions are the responsibility civil principles of the parties rather than the state). apply. 47

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Rights of the Child The best interests of the child are not considered as part of an HDCA civil action. They are in an HDCA criminal action, through section 4 of the Oranga Tamariki Act. Article 3 of the 1993 UN Convention on the Rights of the Child (UNCRC) stipulates that in court actions, the best interests of the child are a primary consideration. Allowance is made for age in criminal matters – a child of 12 or 13 appears in court only in the most serious matters, while 14 to 16-year-olds appear only in serious matters. Younger children do not appear. Yet a child of any age is required to appear in the District Court on an HDCA matter. Legislative recognition of rights under the UNCRC would be consistent with New Zealand’s international obligations, and recognise that different considerations apply when dealing with children. It is suggested that a judicial settlement conference (JSC) in cases involving minors on both sides (perhaps at the first call) could allow for a more child-centred approach. The judge convening the JSC would not be able to hear the claim if it did proceed that far, but the cost of a JSC would surely be less than a full Youth Court-type hearing with various advocates and Oranga Tamariki present (recognising again the private aspect of a civil matter).

Gatekeeping The HDCA requires the approved agency (Netsafe) to have had a reasonable opportunity to consider the complaint and decided on what action (if any) to take as a pre-requisite for action in the District Court (section 12(1)). The applicant is also required to provide a Netsafe summary, which details what actions Netsafe sought and what the result was. Netsafe, however, does not have a gatekeeper role. Even if Netsafe is satisfied that all reasonable actions 48

have been taken and no further action is required, the complainant may still take court action – potentially seeking exactly the same outcome as has already been provided by Netsafe. For example, seeking a take-down order and a cease and desist order when the material has already been taken down and the child has agreed not to post similar material again, and Netsafe has determined that no further action is required. This may seem unlikely, but it has happened. An application may be made in the context of a parent taking action on behalf of a child in a situation where both children have engaged in untoward behaviour. A parent may, however, be blind to their own child’s actions and want “compensation” for the hurt their child has suffered. They may see District Court action as the vehicle for this, or they may consider a court order to have more authority than Netsafe. The Law Commission’s original suggestion had been for a specialist tribunal, which would have a gatekeeping role. The District Court judges made a submission at select committee stage, suggesting that Netsafe only be able to submit matters to the court (which it would do where it was unable to resolve them). This would allow Netsafe to prevent claims proceeding to court where realistic action had already been taken. Currently, a person with an harassment order against them could continue on and make an application to the court, which would require the defendant to see them in court. A gatekeeper role would not prevent appeals being made where a Netsafe decision was disagreed with. It would assist if the summary provided by Netsafe at the conclusion of a matter referred to all remedies available to the court, and indicated whether the parties had sought a particular option. In particular, Netsafe could indicate its view as to whether there was fault on both sides. This would assist the court in understanding the full picture and potentially empower it to dismiss an appeal on the papers. A lay applicant’s view of affairs may mean that they do not disclose the full picture to the court. (This would also assist in the current system on without notice applications.)

Conclusion The HDCA process is helpful for minor complainants, but risks being unduly oppressive for minor defendants. Amendments relating to service and appointment of litigation guardians, and recognition of UNCRC obligations could assist in protecting children. A return to something closer to the original concept of the gatekeeper role for Netsafe would also protect children in vexatious litigant-type situations, and reduce the workload for the court. ▪ Taryn Gudmanz  taryn@princeschambers.net is a barrister based at Dunedin’s Princes Chambers. She has experience over a wide range of civil and commercial litigation matters.

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Accredited employers, the current policy, proposed policy changes and ‘what’s next?’ BY MAHAFRIN VARIAVA 2018 was a year of many ‘immigration-related’ headlines shedding light on a range of issues from migrant exploitation, through to the crisis many employers faced in recruiting suitably qualified staff from the local labour market. News of severe shortages in specific industries and the regions were frequent, with many employers turning to the media – expressing concern on the difficulties associated with hiring migrants, due to the challenging and ever-changing immigration landscape. For many businesses, obtaining accreditation status was a means by which they could recruit offshore workers and save both time and money in the process. Those that were already accredited were able to benefit from fast-track application processing and simplified documentation requirements which meant that applications were relatively straightforward. This article provides an insight into what it means to be an ‘accredited employer’ for immigration purposes. I traverse the current policy and associated challenges and look at changes suggested by the Minister of Immigration in a consultation discussion document released in December 2018.

What does it mean to be an accredited employer? Immigration New Zealand’s (INZ) Operational Manual is a key document relied upon by all stakeholders working within the immigration field in New Zealand. The document includes a set of instructions which provide a guide for how applications should be assessed and what requirements should be considered when determining the outcome of an application. WR1.20 of the Instructions, defines an accredited employer as “a New Zealand employer who has had an application for accreditation to employ persons under the Talent (Accredited Employers) Work Instructions approved by INZ”. Under instructions WR1.1, the objective of the policy is to “allow accredited employers to supplement their New Zealand workforce in the core area of their business activity” through the recruitment of workers who are

not New Zealand citizens or residence class visa holders, whose talents are required by the employer; with the accredited employer having direct responsibility for those employees and their work output. The premise behind most applications for accreditation is a company’s anticipation of its future needs to recruit staff from offshore – an ongoing dilemma for many given the dearth of suitably skilled workers in the local labour market. Having successfully achieved accreditation, an employer then becomes a ‘trusted partner’ of INZ. This carries certain obligations, but importantly offers a streamlined process for obtaining a work visa for a prospective employee. Under current requirements, a talent visa can be issued to those offered a gross annual salary of at least $55,000, who are under the age of 56; with standard requirements for the approval of a work visa applying (including health and character). Tangible benefits exist for both employer and employee under the scheme. Accreditation allows an employer to recruit offshore applicants without the need for a local ‘labour market test’ – an often complex, time consuming and uncertain process, requiring evidence a migrant is the only suitable applicant. Having worked for two years on a talent visa will also allow a migrant to apply for residence, a significant feature for those unable to do so via an alternative pathway; and an incentive to remain with the employer (at least until residence has been obtained). The policy outlining the requirements for accreditation is set out under WR1.25 and has been reviewed regularly since coming into effect in 2010. However, although relatively familiar for those with a working knowledge of policy, it can often present challenges for employers who from the outset appear good candidates for accreditation.

Difficulties with the current policy The objective of the work visa policy overall is to allow New Zealand employers access to global skills and a diverse range of employees who can contribute to New Zealand, as well as to their businesses in a myriad of ways. The premise behind most applications for accreditation is a company’s anticipation of its future needs to recruit 49

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Accreditation talented staff from offshore due to allows an increasing difficulty in finding candiemployer to dates with suitable skills within the local labour market. Having accredrecruit offshore applicants itation status allows companies the without the flexibility to hire offshore workers. need for a local The positions to which those indi‘labour market viduals would be recruited utilising the accreditation status, will be roles test’ – an often complex, time within the company which will not consuming undermine the conditions of local and uncertain workers based onshore. process WR1.25.5 of the instructions discusses what a case officer must consider when determining an application for accreditation. As a summary, the requirements are as follows: • That an employer must be in sound financial position; • That an employer must have human resource policies that are of a high standard; • That an employer has a demonstrable commitment to training New Zealand citizens or residence class visa holders; • That an employer has good workplace practices. These elements are central to an overarching (and supposedly balanced) assessment by INZ, the final arbiter in the decision of whether the standard has been met. Of late however, we have become aware of a number of decisions causing issues for applicants which are to some extent perplexing. Of particular note is INZ’s approach to an applicant’s “human resource policies” and “workplace practices”. In 2018 we were approached by a range of applicants (primarily in the construction and hospitality sectors) that had received negative outcomes due to INZ’s assessment showing shortcomings in these areas. In our analysis of these decisions we referred to policy, taking the following into account:

Requirement factors Under each of the requirements listed above, there is a list of factors that an immigration officer may consider in determining whether an employer has made the said requirement. It is noted that the wording of the policy under WR1.25.5 makes it quite clear that this list is not conclusive. We note for example: In determining whether employers have good workplace practices, an immigration officer may take into account such factors as: • Whether the employer has diversity policies and practices in place as outlined by Diversity Works NZ; • The extent of any non-compliance with immigration or 50

employment legislation; • Where there have been minor breaches of legislation listed in WK5.1 (b)(iv), the degree to which the employer has put in place remedies to prevent similar breaches in the future; • Policies and processes the employer has put in place to ensure they remain compliant with immigration and employment legislation; • Feedback from relevant unions and other employee representatives. The policy does not ask the officer to assess these factors collectively because it does not say that the officers must consider the first four factors. Therefore, these factors can be considered individually when arriving at a decision. Clearly, an officer is gifted with exercising discretion when assessing an application; but, an officer must also exercise a holistic approach by exploring alternatives when determining whether the organisation meets the requirement. Therefore, INZ must question whether there is a need for a diversity policy within a small company. Additionally, a lack thereof does not mean that an employer does not have good workplace practices. The same applies to having HR policies of a “high standard”. The ‘high standard’ threshold is a comparative one, consequently it must be compared against other employers within the same industry. If we apply this to practice, we can simply ask INZ to select any small business at random and query whether this business has “HR policies and process of a high

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It is proposed that all employers wishing to hire migrants will need to be accredited and this requirement alone will facilitate change in the policy surrounding accreditation and accredited employer requirements. INZ intends to create an enhanced framework, streamlining the application process with three checks – also being referred to as the “Gateway Framework”. Firstly, the employer gateway. Under this gateway, INZ’s intention is to determine that the employer is in fact cleared to hire migrants. This includes ensuring an employer has good quality workplace practices and procedures; that it complies with labour and employment laws; that it is committed to upskilling its workers; and that it is financially stable. Secondly, the job gateway. Here, no labour marketing testing would be required for jobs that meet a higher remuneration threshold. As it currently stands, the remuneration threshold is $55,000 annually; the intention is to increase this to $78,000. Alternatively, if the employment falls under the new proposed Regional Skilled Shortage List, the labour market test requirement is exempt. However, in all other instances, a labour market test will be required. Finally, the migrant gateway. This is the application process the applicant must go through. In this stage, the applicant’s health, character, identity and capability (ie, training and experience) will be checked.

What’s next? standard”. While it is acknowledged that small businesses (who employ less than 10 people) may not be suited for accreditation; those businesses which employ at least 10 people, also may not have the finances, outgoings or the need to have extensive HR policies and processes in place. Nonetheless, the lack thereof does not automatically mean non-compliance; what it does illustrate is that small businesses simply thrive on getting through day by day. In the construction industry (especially), owners do not spend copious hours conducting performance reviews or disciplinary meetings for example. It is unreasonable for a case officer to paint each accreditation application with the same brush without considering the size, nature of, and industry the business operates in. But, in practice, these factors do have an impact on organisations being able to meet the criteria for accreditation as it currently stands. INZ must consider the importance of this in assessing applications for accreditation for small businesses and must consider that despite their size, the policy intended that these businesses be included.

The proposal Towards the end of 2018, the Government released a consultation paper for further changes to work visas that were employer-assisted. There are a range of categories that fall under the employer-assisted work visa umbrella; Talent (Accredited Employer) Visas being one.

While the review of the policy is welcome, this already-complicated category will be further hindered if employers do not understand the new changes and requirements. In the next year or so, employers will require more administration of their workplace policies and processes to better prepare themselves to ensure that they meet the requirements to qualify for accreditation. Given the heavy reliance on migrant labour in the current market, there is no doubt that, in the initial stages INZ will receive an influx of applications from employers seeking to be accredited. We also anticipate a decline in the numbers of applications for work visas in the short term. The above is an interesting shift in the aims of the immigration system – processes that were once ‘migrant’ centric, to fit with INZ’s overall settlement outcomes have since shifted to focusing on the ‘employer’ and what is in the employer’s best interests. The irony of course being that in 2018 employers complained that INZ needed to make it easier for them to employ migrants (under the existing policies) and now, the new policies do not seem (at first glance at least), like a solution to the problem. ▪ Mahafrin Variava  mahafrin@thlaw.nz is an immigration solicitor with Turner Hopkins and has been in the industry for four years. She attributes her success with clients to her migrant background which has been an asset in her ability to transcend beyond cultural barriers to provide a seamless service. 51

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Strata / Units and Urban Development BY THOMAS GIBBONS In late February and early March, the Australian College of Strata Lawyers (ACSL) held its conference in Auckland. New Zealand’s Unit Titles Acts (both 1972 and 2010) have drawn heavily on Australian models, and there is much to be learned from cross-jurisdictional study. This short article editorialises on some key themes and ideas from the conference, with acknowledgement to those who presented on these topics.

Space and time Our cities are intensifying, and not just in Auckland. Infrastructure costs, road congestion, and concerns about urban sprawl are all driving greater densities. For some, greater housing density means concerns about slums, anti-social behaviour, and loss of an imagined New Zealand way of life. For others, greater density reflects a modern world, changing demographics and ways of living, and reflects good urban design. What seems clear is that density needs greater understanding not just in spatial terms, but across time. The Unit Titles Act 2010 and Resource Management Act 1991 do not speak to each other very well. Unit titles are often thought of as a method of subdivision, but what happens once the plan deposits? They need to be understood as a mode of governance as well. A mode of urban governance.

Short stays The regulation of short-stay holiday accommodation – and these services are offered by a number of providers – is a critical issue in many jurisdictions. Different Australian states have reached entirely different conclusions on whether body corporate rules (often called ‘bylaws’ in Australia) can regulate short stays or even the use of units in general. The Privy Council’s decision in O’Connor (Senior) v Proprietors, Strata Plan No 51 [2017] UKPC 45, though influential, has proved not to be the last word on the matter. Some bodies corporate oversee populations the size of a small village, and – as case law continues to show – owners do have interests in what the body corporate and other owners are doing. Some bodies corporate in Australia seek to avoid the issues that surround bylaws restricting use in other ways – for example, saying that anyone staying in a unit must pay a ‘health and safety induction fee’ of $100, or $300 if after hours. This has impacts on those seeking to let out a unit for short term stays. 52

Disputes In developments of all sizes, issues around pets, shortterm letting, and other matters can be highly emotive. Effective dispute resolution mechanisms can be challenging. Generally, Australian states have tribunal models which have low costs of access (no application fee, or a fee of less than $100), but extreme levels of legal cost can arise – in one example, over $700,000 in legals. This also means the Australian states place high emphasis on tribunal decisions as, effectively, quasi-precedents. In New Zealand, our Tenancy Tribunal has high access costs ($850 or $3,300) in its unit title jurisdiction, hears fewer matters, and lawyers generally debate court cases rather than tribunal decisions. Over time, this may change. The availability of tribunal decisions remains an issue for New Zealand, and access to justice considerations suggest these should be more widely available.

Caretakers Another issue arising in Australia is the role of caretakers, and the difficulty of enforcement when a caretaker does not do their job properly. Since Body Corporate 396711 v Sentinel Management Ltd [2012] NZHC 1957, there has been little case law on management contracts in New Zealand, but anecdotally at least, issues remain, especially the long-term nature of many of these agreements, and the difficulties in their enforcement and termination.

Redevelopment It has been noted that Auckland’s existing intensification – a round of cross-leases in the 1970s and 1980s – is now impeding further intensification. The same issues apply, in different ways, in states like Queensland, which has a large number of small, six-unit, developments. Broader issues arise in jurisdictions like Singapore, where the scarcity of land means that the ability to activate redevelopment is critical. This inevitably has an impact on property rights. Examples from Japan suggest that large-scale redevelopment and reconstruction is possible. Finally, the conference heard from Martin Gold from Columbia University, New York, who spoke on the redevelopment of Times Square. There, a multi-decade project involved a combination of private developer payments, public sector monies, tax concessions, land agglomeration,

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ground leases, and municipal bonds to create the Times Square we know today, with more tourists, more jobs, better businesses, and less crime.

How we live When we think about what our cities look like, and how people live in them – and when we think about what an urban development authority might do – it is useful not just to think locally, but to look further afield. Any lawyer acting on unit title matters should have some knowledge of developments in Australia, and any lawyer looking at broader topics of urban development should have an eye even further afield.

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As we attain greater recognition of the costs of infrastructure, the externalities of sprawl, and the needs of the many, the balance between property rights and the collective interest may be shifting – both within the area of unit titles, and in urban development more broadly. Greater attention is needed to private governance, as well as public governance, and what this means for the future of our urban areas. ▪ Thomas Gibbons  thomas.gibbons@mccawlewis.co.nz is a director of Hamilton firm McCaw Lewis. He writes and presents extensively on property law. 53

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ALTERNATIVE DISPUTE RESOLUTION

Dispute prevention: using mediation as a business tool Part 2 BY PAUL SILLS

In the last article (LawTalk 926, March 2019, page 56) I introduced the concept of early intervention in commercial relationships – using mediation as a business tool rather than as an adjunct to litigation. In Part 2 we will look at some practical examples of this concept at work. I would recommend reading “Tailored Commercial Mediation Options: What are they, and how can a sceptical market be encouraged to try them?”, a paper presented to the 2015 AMINZ annual conference by barrister and commercial mediator Mark Kelly.

Deal mediation A deal mediator may be appointed to assist parties that are not in dispute but who are trying to agree the terms of a commercial contract. This is an emerging trend and recognises the fact that parties who have a great deal invested in the outcome of their negotiations often need help getting through impasses in the process. Deal mediation addresses two things: 1. Parties invest a great deal in commercial negotiations (due diligence, loss of business opportunity, sunk costs on advisers, funding costs, etc). This investment can create an adversarial aspect to the negotiations because the parties may each feel they need to recover their investment by obtaining some advantage in the final outcome. Deals fall over 54

when both parties reach a stalemate for these reasons. 2. Parties in this position can benefit from a deal mediator’s neutral and objective perspective. Just as when the parties are in dispute, a deal mediator can build rapport and trust with both parties, help maintain relationships that are starting to fail, assist in option generation and essentially carry out all the functions they would when mediating a dispute. Deal mediators may also remain engaged with the parties and effectively stay on as a mediator to the agreement (discussed below). The mediator can then continue his or her role in assisting the parties to manage the relationship and their communication, as well as mediating any disputes which may arise under the agreement.

Mediator to the dispute This involves appointing a mediator to a dispute at the earliest possible opportunity. Under a mandatory mediation provision, this would occur when one of the parties first gave notice of the dispute. The aim of such an appointment is for the mediator to assist the parties in reaching a resolution. Given the early stage of the intervention, the role of the mediator would include: • Assisting in identifying impediments to settlement; • Ensuring that the right decision makers are engaged for each party; • Assisting with the fair exchange

of information (an essential ingredient for early resolution); • Managing expectations; • Early reality testing; • Assisting parties to manage the relationship and coaching them on this aspect; • Designing the dispute resolution process that will best suit the nature of the dispute. All of these roles can equally be applied to the facilitation of issues that are not yet disputes but may become so if the parties’ communication (or lack thereof) lets them down. Rather than looking at the appointment of a mediator to the dispute with a defeatist attitude (ie, the parties are inevitably going to end up in dispute), the appointment can be taken out of the context of dispute resolution and reframed as the appointment of a mediator to the agreement. The rationale and focus for the appointment then shift from the “inevitability” of a dispute to maintaining healthy relationships and communication between the parties.

Mediator to the agreement Large construction contracts make great use of dispute boards to ensure that disputes – as and when they arise – do not interfere with the critical path of the project. The board decides which disputes to resolve along the way (and then does so) and which disputes can be held over to the end of the project and on

what terms. The board’s involvement keeps the construction project on track. Dispute boards are mostly used in complex, high–value construction projects. The board is created by contract and the decisions can be either binding or non-binding. The board can stay active throughout the contract with regular site visits and meetings with the parties in order to proactively identify and resolve issues before they escalate into disputes and, where necessary, make formal determinations. The alternative is a board that determines disputes only as and when they are referred to it. I am advocating a similar application in the mediation/facilitation sphere. That is, the parties use the assistance of a neutral, objective, trained mediator to assist them to resolve all issues that may potentially derail their relationship and therefore the contract. This form of dispute avoidance is proactive, effective and has the best chance of maintaining and developing the relationship between the parties.

Singapore’s new protocol An example of this concept and practice is the Singapore Infrastructure Dispute-Management Protocol launched in October 2018 which is aimed at minimising time and cost overruns in large infrastructure projects. The intent of the protocol is to assist parties involved in mega infrastructure projects to manage their disputes and minimise any risks associated with overruns. The protocol is part of the efforts to establish Singapore as the infrastructure hub of Asia. Asia apparently needs US$1.7 trillion of infrastructure per year from 2016 to 2030. Infrastructure projects are renowned for cost and time overruns as they are typically complex and involve multiple parties. Disputes are often unavoidable and will lead to delays in higher costs if not managed properly. Under the protocol, differences will be proactively managed to prevent them from escalating into disputes. From the outset, the parties to a project will appoint a dispute board comprising up to three neutral professionals. The board members will be experts in relevant fields such as engineering, quantity surveying and the law. The dispute board will follow the project from start to finish and manage issues through a range of customised dispute avoidance and resolution processes.

Mediation as a business tool may prevent time and cost overruns in specific contracts and foster positive commercial relationships that may generate future opportunities.

Building on international best practice, the key aspects of the protocol are: 1. A proactive dispute prevention approach is adopted. The dispute board is appointed from the start of the project, not waiting until disputes have developed and are entrenched. This prevents matters snowballing out of control. 2. The protocol provides for a wide range of methods to help address disputes should they arise. This includes mediation, opinions and determinations. 3. The protocol has professional and administrative support through the Singapore International Mediation Centre and the Singapore Mediation Centre. Both will assist with identifying and appointing board members, administrative services (physical meetings, escrow arrangements, other administrative services). Mediation as a business tool may prevent time and cost overruns in specific contracts and foster positive commercial relationships that may generate future opportunities. While pre-dispute mediation strategies are already being used effectively for large-scale projects, the benefits are equally available to parties engaged in smaller projects by tailoring the process appropriately. ▪ Paul Sills  paul.sills@paulsills. co.nz is an Auckland barrister and mediator, specialising in commercial and civil litigation. He is an AMINZ Mediation Panel member. 55

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ALTERNATIVE DISPUTE RESOLUTION

How to pick a mediator BY CAROLE SMITH Enthusiasm Most lawyers, and some clients, get the potential benefits of mediation. Cost/time saving, stress reduction, relationship preservation, confidentiality, blah blah blah. But once the decision has been made to go to mediation, how to find a mediator? And not just any mediator – the right one for that dispute? What follows is a rough guide for picking a mediator.

Specialisation (Quite) a few years ago, a colleague of mine was engaged in an IT case involving internet service providers. The second week into the trial, the judge asked “what is the internet?” Granted, it was early days, but the point is that most litigators would prefer to have their case heard by a judge who at least has some knowledge of the area of law before them. In contrast, most mediators subscribe to the belief that it is the “process” they are really there to help facilitate. The substance is often seen as being something best left to the lawyers and/or parties. Why the distinction? Of course, mediators are not judges. They cannot make decisions. They are not supposed to give legal advice. Many mediators are not even lawyers. So why does specialisation matter? Because in disputes involving discrete (and sometimes technical) areas of the law, it helps if the mediator has “some idea” what the parties/ lawyers are talking about. Areas that spring to mind include construction, tax, trusts, IP, IT, etc. Some idea saves potential misunderstandings, time, and allows mediators who really grasp the subject matter to be Mediation can much more effective in be chaotic. It helping the parties reach is a juggling resolution. For example, act from start mediators who attempt to to finish. reality check lawyers in a Forget rigidity. specialist area of law they From flexibility know nothing about are evolves unlikely to be productive. creativity. 56

Many mediators sell their services by saying how experienced they are, how many mediations they have done, and even their “success” rate (however that is defined). The downside of all of that is the real likelihood that they are burnt out, and just a bit fed up with the tediousness of it all. There is much to be said for enthusiasm. As a process, mediation requires energy, indefatigability, and creativity. These are hard to drum up if, as a mediator, you’re a bit over it all.

Diversity Yes I know, there has been a lot said on this general topic recently. So I’ll keep it brief. There are lots of white male commercial mediators. They cannot help it of course. There is a teensy-weensy list of female commercial mediators hiding on the Russell McVeagh website. And to get even more diverse than gender, what about cultural considerations? It is fundamental that disputes involving parties of non-European descent involve a mediator who gets the potential impact of cultural differences on the process.

Mediation qualifications It appears that many mediators undertake approximately one week of training in the field of mediation/negotiation/ dispute resolution combined. There is only so much that can be learnt in a week, even if it was intense. Look for mediators who have a university qualification in dispute resolution, or equivalent.

Personality This is kind of connected to the enthusiasm point above. Except this is broader. Mediation can be chaotic. It is a juggling act from start to finish. Forget rigidity. From flexibility evolves creativity. Forget mediators who use one model of mediation regardless of what the situation requires. Forget mediators who shy away from asking difficult questions. And last, but by no means least, forget egotistical mediators. They will suck up all the oxygen in the room. ▪ Carole Smith  carolesmith@fortyeightshortland. co.nz is an Auckland-based barrister, mediator and negotiator. See  www.carolesmith.co.nz and  www.fortyeightshortland.co.nz for further information.

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LEGAL RESEARCH

Taking a break to secure our future BY LYNDA HAGEN

It is with a heavy heart I write this month’s article. As the old saying goes, sometimes in life one needs to try and find the silver lining in the dark clouds. This article feels a bit like that. Recently the Law Foundation has had to make the tough but necessary decision to go into recess. This is to allow its funding base to rebuild so that, in time, it can relaunch to support a new generation of legal research. The decision was very difficult, but doing so now, while the Foundation has some remaining funds, provides the best prospect for its eventual revival and long-term sustainability. It is a brave decision: the alternative of depleting remaining funds and fading away was not acceptable to us. Our last funding round will be in June 2020, after which no new grant applications will be accepted. Following that, the Foundation will gradually wind down as the projects on its books are completed. None of us at the Foundation wanted to take this step. I’m personally disappointed about it, as is my board, but as we worked through the options over the last year, and bounced ideas off key stakeholders we engaged with, it became clear that this was the sad, but realistic, option that would ensure a better legal research future. Our main difficulty has been our inability to replenish our funding base. We lost access to statutory funding in 2008 and since then our fund has steadily eroded to the point where we’ve had to make a difficult call: disperse our remaining funds over the next few years and consign ourselves to history, or call a halt, invest our remaining capital of approximately $12 million, and try to rebuild a funding base from which to re-launch in about 10-15 years’ time. We chose the latter course because we believe that, after a hiatus, we will be able to re-start sustainably and resume making grants.

▴ Lynda Hagen

Always backed quality projects We know that the work we have supported has driven better legal and public policy practice in New Zealand. We have always sought out quality projects and people to back. We have never sought a high profile, preferring to be the enabler of great research, and ensuring the projects we support get the attention, rather than the Foundation itself. Maybe that back seat role has been part of our problem. People do not seem to make the link between the success of the amazing work we support and the Law Foundation that made it possible. There is, of course, the opportunity to speed the Law Foundation’s return to the market through financial donations. Even though we are going into recess, the Foundation would be open to receive donations for its general work or for specific projects. That would reduce the length of our recess period. It is regrettable, despite the value we have added to New Zealand’s public good, and the importance to us all of quality, independent legal research, we have never received a single donation since we started making grants in 1992. It is not too late. We are taking this step because we genuinely believe that our work, and the niche we fill supporting “better law” and good public policy, is too important to dispense with altogether. The timing of our decision to “hibernate” dovetails well with the recent arrival of another funder, the Borrin Foundation. This provides legal researchers with another potential source of support in the interim. 57

LEGAL RESEARCH

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LEGAL RESEARCH We have always sought Thanks to out innovative, future-foprojects cused projects. We have backed by us initiated research into new over 26 years, thinking in law and policy Family Court around human reproducprocedure has tive technologies, better improved and approaches to regulation, the treatment and rapidly-emerging new in court of technologies including vulnerable digital currencies, driverwitnesses less cars, artificial intelliincluding gence, and so-called “brain children and fingerprinting”. sexual violence Thank s to projects victims has backed by us over 26 got better years, Family Court procedure has improved, the treatment in court of vulnerable witnesses including children and sexual violence victims has got better, the use of Urgency in Parliament was revised, and the ACC appeals process has been overhauled. Our projects led to the first restorative justice initiatives, addressed Māori and Treaty issues, and enabled changes and new thinking on human rights, the constitution, the environment and mental health, to name but a few. Alongside research, the Foundation has supported projects that strengthen legal practice, for example through support of legal education and mooting competitions. All of this and more has been recognised by those who know us well, including academia, the law deans, the Law Society, and many in the judiciary and in legal practice. We sincerely appreciate the backing we have had from key stakeholders as we worked through taking this difficult decision, particularly from our former Patron, Dame Sian Elias, former trustees, the Law Society and the law deans. While all are disappointed that the Law Foundation is going into recess, they understand the rationale for the decision, and see this as the best way to secure a brighter future for legal research. Personally, after more than 20 years at the helm of the Foundation, I have got to know our legal research community very well. I will miss our interactions, my visits to the law faculties, and the excitement I always feel from hearing the passion researchers have for their work, and their aspirations to “make things better”. I feel very privileged to have been part of this for so many years. ▪ Lynda Hagen  lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation. 58

The Borrin Foundation Making a difference to New Zealand, through the law BY MICHELLE WANWIMOLRUK

“We believe law is essential to a flourishing society – one that is just, inclusive, tolerant and free. Our vision is of an Aotearoa New Zealand where everyone understands the role and value of the law, and everyone enjoys the protection and opportunity that it provides.” – the Michael and Suzanne Borrin Foundation’s vision statement. This statement reflects our founder, Judge Ian Borrin’s aspirations in establishing the Foundation with his $38 million bequest. The Borrin Foundation is his gift to New Zealand. It is a special gift, because it requires people like you – people who, like Judge Borrin, love the law, care deeply about how the law works (or doesn’t work), and want to make a positive difference to people in our country. The Borrin Foundation is here to make a difference to the lives of New Zealanders, through the law. We do this by supporting legal research, education and scholarship through effective philanthropy. Part of our ‘effective philanthropy’ approach is to invest in people to advance our goals. We want to find, and fund, people who share our vision for Aotearoa New Zealand. We want to be the propeller, the extra ‘boost’ to enable people to maximise their talents and pursue our shared goals for New Zealand. You may have discarded the Borrin Foundation to the ‘not relevant pile’ when you heard the words ‘legal research and education’. But the Borrin Foundation is here for a much wider group of people, not only academics and researchers. We are also here for practising lawyers, doing everyday practical work that contributes to our vision. In fact, Judge Borrin, in the Borrin Foundation’s Trust Deed, drew special attention to the foundation funding “members of the New Zealand legal community as a whole”. This includes “members of the judiciary (being judges or retired judges of any of the courts of New Zealand), members of the practising legal profession (whether engaged in

the public or the private sector), lawyers holding an academic appointment… and law students of graduate or post graduate status”. The Borrin Foundation is looking to invest in people who are already in their legal careers. Since the Borrin Foundation’s launch in February 2018, we have announced over $3 million of grant funding across about 30 grant projects. The projects have focused on areas where the law is not serving New Zealanders well – predominantly the criminal justice system and family law. The criminal justice system is an area where transformative change is needed. Among Western developed nations, New Zealand’s incarceration rate is second only to the United States. Family law touches many aspects of New Zealanders’ lives, often when they are at their most vulnerable. A full list of grants is on the Foundation website.

▴F rom left to right: Michelle Wanwimolruk, Sir Terence Arnold QC, Richard Caughley, Professor Mark Hickford, David Goddard QC (Chairperson), Kathryn Beck

In April 2019 we will distribute a survey looking at how the Borrin Foundation can invest in individuals. We would love to hear from you. We are seeking your ideas about: • how we can support people who are already in their careers, • how we can build capacity in the legal community, • how we can maximise the potential that exists in the legal community to be a greater force for good. Judge Borrin’s gift is one that relies on the participation of people who care deeply about making a positive difference and about the role of law in society. We hope that you will join us in this journey towards an Aotearoa New Zealand “where everyone understands the role and value of the law, and everyone enjoys the protection and opportunity that it provides”. ▪ Michelle Wanwimolruk  michelle@borrinfoundation.nz is Chief Philanthropic Officer of the Michael and Suzanne Borrin Foundation. Further information on the Foundation is available at  www.borrinfoundation.nz

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ACCESS TO JUSTICE

High rewards for those representing the low-paid The work of in-house lawyers at New Zealand’s unions BY CRAIG STEPHEN “There is power in a factory, power in the land, power in the hands of a worker, but it all amounts to nothing if together we don’t stand, there is power in a union” – Billy Bragg, There Is Power In A Union (1986) Union lawyers are few and far between in New Zealand but this select group of in-house lawyers performs a largely unheralded role. It’s not a role that is as financially rewarding as other in-house roles but every union lawyer has their own motivations. And as LawTalk found out when it talked to three of them, they also come from very different backgrounds: one was once a printer’s apprentice, one a union rep and the other a former paralegal. Duncan Allan is an industrial officer with the Unite Union which represents some of the lowest paid and fluid workers 60

in the country including those who earn their living in hotels, retail, fast food, call centres and restaurants. He describes his role as more of a legal officer than a full-blown lawyer role and one he essentially stumbled into after being an organiser at both Unite and Finsec. “I very quickly found out that I enjoyed the legal side of advocating for members.” After a spell at the Wellington People’s Centre, an organisation advocating for beneficiaries and the low-paid, he worked in restorative justice with the Community Law Centre. While there that he decided to study law at Victoria University of Wellington, being admitted in December 2017. “Rather than coming straight out of school and knowing that I wanted to be a lawyer, it was more a case of finding through my work that that was what I wanted to do. “I’m pretty new when it comes to be being a practising lawyer within the union movement, but I’ve a long involvement in the union movement.” Oliver Christeller is the Senior Solicitor for First Union, which represents workers in transport, logistics and manufacturing and also thousands in white collar jobs, such as finance and commerce.

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He is a lawyer who became a We’ve seen union solicitor, graduated from an increase in Victoria University, was admitted in strike action 2010 and then worked voluntarily in the public with the People’s Centre. sector which Initially, he was carrying out paraleindicates gal work at Finsec, before becoming some the legal rep for its successor, First confidence Union. Much of his work centres on the part around providing legal advice to of working union organisers – “they are the first people line of representation for union memthat this bers” – and he represents members government individually and through the union will listen to in dealings with the Employment their concerns Relations Authority and the courts. Anne-Marie McInally is General Counsel at E tū which represents workers at a diverse range of industries including engineering, manufacturing, food, communications and aviation. She studied law in Auckland and was initially keen on family law. However, a vacancy came up at the then National Distribution Union to cover for maternity leave, which became three years. She then moved to the EPMU as an in-house lawyer and that union later joined two others to form E tū where she is now General Counsel. It took an injury to coax her into studying law at the age of 26. “I was an apprentice printer until I injured my hand and had to retrain. And prior to taking on the apprenticeship I had worked as a judge’s associate. I was attracted to the law but wasn’t able to take the leap from paid employment to studying until I was forced to retrain.”

ACCESS TO JUSTICE

▴ Duncan Allan, industrial officer with the Unite Union

Justice otherwise denied All three union lawyers say their role is offering an alternative to paying large amounts of money to lawyers that workers, who may be on the minimum or living wage, could clearly not be able to pay for. They represent people who are prone to unjust dismissal, financial struggles brought on by illness and injury and exploitation. Duncan Allan is based at the rundown Trades Hall in Vivian Street in central Wellington. “A lot of workers in Unite, if they weren’t part of the union, they simply wouldn’t have any access to justice: they’re low paid, they can’t afford a lawyer and there’s not many options if they’re having issues at work,” he says. “In these low-paid, largely casualised industries it’s like the wild west out there in the way they’ve been treated so there’s real issues with that access to justice and unions are a way in which people can get that. “The work is quite varied, and this is the interesting thing about being a union lawyer is that you’re working in-house so you’re giving legal advice to the union on the things that they do and how they operate,” he says. “But a lot of the work is individual representation of members, so things like personal grievance claims and Employment Relations Authority hearings. There’s a lot of individual representation but also dealing with contractual disputes between the union and an employer. I get to dabble in a lot of different areas.” Mr Allan contributed to Unite’s submission on National’s Employment Standards Legislation Bill which passed its third reading in March 2016. “Unions are such an important voice in the submission process because there’s large organisations representing employers, and without unions providing submissions and a counter point, there’s no one else who can fill in those spaces.” He says the work is rewarding and what he has always wanted to do.

▴ Anne-Marie McInally, General Counsel at E tū

▴ Oliver Christeller, Senior Solicitor for First Union 61

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“The type of work we’re doing certainly suits someone who possesses that passion for the work. It’s not what you do for the money, and it probably suits people who have that social justice background or have been involved in those type of campaigns in the past, not necessarily unions or employment rights but any kind of NGOs or have advocated for access for justice.”

The job is a privilege At E tū Anne-Marie McInally works with organisers on collective agreements, disputes, litigation, represents individual members, and also educates new organisers. “Most of the case work we do is personal grievances, usually over dismissal, and workplace injuries, including representing members who have issues with ACC. “We also assist in submissions on bills before Parliament so there’s a lot of variety that you wouldn’t get in many in-house positions. “It’s not unusual to have to engage with dozens to hundreds of workers at a meeting and explain what a legal situation entails and give them advice and recommendations and allow the democratic processes to operate. But you also have to try to guide them to make good decisions and I think that representing very large groups is something that is unique to union lawyers.” Ms McInally says the job is very challenging but highly stimulating as she is dealing with a raft of issues: “there’s no time to get bored”. “It’s a privileged job because our members pay a fee every week to belong to the union and for most of them when they get into difficulties there is simply no way that they could afford to pay someone $400 an hour to represent them. So we have the opportunity to step up and help them with their issues, and it is very rewarding to assist them in that. “Sometimes this may involve protracted litigation. On other occasions, a well-timed phone call has seen a worker reinstated to a job they love,” she says. “My dad wore overalls to work every day. On the rare occasions he had to see a lawyer he’d put on his good clothes and it was a stressful exercise. I get so much pleasure from putting working people like my family at ease in their dealings with the legal system, knowing that even if they had the means to get representation outside of the union, they would probably lack the confidence to do so.”

Migrant workers Oliver Christeller notes that a large number of the low-paid and exploited are people who do not speak English as their first language, which creates additional complications for them, both at work and in pursuit of justice and better conditions. “I’ve represented a lot of people who wouldn’t have the connections, or 62

the financial means, to pursue a case through to mediation or the Authority including migrant workers. “They often are in a situation where they have not been paid or are being paid at rates well below the minimum wage – and I mean as low as three or four dollars an hour. “Generally, migrant workers only have a visa to work for a particular employer which means that the employer has control of their legal status in New Zealand because if they cease to be an employee of that particular employer then they lose their legal right to be in the country.” Mr Christeller says First Union has had its share of success and the most rewarding aspect of his job is when it is able to improve the terms and conditions in the contracts of vulnerable workers. But he says that while the environment around workplace relations has improved since the establishment of the Labour-led Coalition government, with the changes in the Employment Relations Amendment Bill, these are “relatively minor”. “I don’t think those changes are going to have a massive impact, however, things like fair pay agreements, depending on how they come in and where they came in, have the ability to materially improve conditions for workers.” Nevertheless, Ms McInally feels there are significant changes in the bill, and also in workers’ outlook, that are beneficial to workers and therefore the country as a whole. “We’ve seen an increase in strike action in the public sector which indicates some confidence on the part of working people that this government will listen to their concerns,” she says. “We have seen some strengthening of the good faith obligations in the amended bill and that will go some way to improve working relationships between workers and employers. So we are facing a period of some positives but incremental change.” In terms of pro bono work, Mr Christeller says he encourages lawyers to offer their expertise at Citizens Advice Bureaux, Community Law Centres and migrant organisations. ▪

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ACCESS TO JUSTICE

The firm that represents unions – and employers BY CRAIG STEPHEN

So where do those unions without in-house counsel go for legal assistance? Among the small group of firms that represent unions is Wellington-based McBride Davenport James. They also represent a range of employers, but not both sides at the same time naturally. Partner Paul McBride, who has for many years appeared in the Employment Relations Authority, Employment Court and senior courts, says the firm’s six-member employment team currently represent four trade unions in the transport sector and also other unions in other sectors. “In the transport sector we have some long-standing – by which I mean 15 or 20-year relationships – with some unions. They are unions that largely don’t have in-house lawyers and effectively we take on the role of providing their legal advice and legal representation,” he says. “One of the unions we act extensively for does have an in-house lawyer but for various reasons they instruct us to do the litigation work for them and to deal with other things in employment, health and safety and other areas that we specialise in.” A recent ongoing dispute has been at the Lyttlelton Port where members of transport unions went on strike over pay and safety. We can “There’s been extensive industrial take a far action involving the Lyttleton Port more critical Company over the last few years approach to involving strikes and pickets and advising each we have been heavily involved in a of unions and series of court actions for a number employers: of unions arising from that dispute.” no beating Mr McBride says the firm appreciaround the ates that unions don’t have a great bush and no deal of money to spend on legal fees, posturing

▴ Paul McBride

so they tend to come to arrangements that accommodate their financial vulnerability. “One of the things that unions look for, in my experience, is cost effective service. We look at a range of factors including ongoing relationships, familiarity with the general issues and context, the interesting variety of work, volume of work and other factors that temper fees we could otherwise charge.” Mr McBride says the firm ensures there is no conflict of interest as it also represents employers, and individual workers. “That work is generally in sectors where we don’t represent unions, so at one level it enables us to bring a balanced approach to the advice we give both to our employer clients and our union clients because it means we know which buttons can be pushed on both sides. “We can take a far more critical approach to advising each of unions and employers: no beating around the bush and no posturing and stuff like that because we have seen all of that before. It’s best just to get down and look at all the real issues and look at what the pragmatic solutions to those might be. Because, when you’re working for employers who have ongoing relationships with unions, or vice versa, the dynamics include that neither party is going to disappear anytime soon. So even if they don’t like each other they have to work together, to a greater or lesser extent.” ▪ 63

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Talking about mental health Be the one: start a mental health movement in your workplace BY SARAH TAYLOR It’s OK to ask for help: This article discusses mental health issues and suicide, which may be an upsetting or sensitive topic for some people. Three years ago, after losing a close workmate to suicide, Grant Pritchard embarked on a journey to improve mental health in the workplace. The result is a thriving mental health movement at his workplace, Spark, that is helping eradicate stigma, improve mental health literacy, and create an open and supportive mental health culture. I first met Grant last year at the ILANZ Conference during an informal session he hosted with ILANZ President Sian Wingate on the topic: “How do you prioritise mental wellbeing in your workplace?” The session was fantastic – the discussion flowed and everyone in the room was engaged and motivated. Grant’s enthusiasm was infectious and afterwards I bowled up to him for a chat. We connected instantly and he told me about some of the mental health initiatives he’d started at Spark. Since then, Grant and I have met several times and I’ve grilled him about how to kickstart a workplace mental health movement.

The fire Lucy Sedgwick was a close colleague of Grant’s at a large Australian telco. “Lucy led a large team and was one of the legal team’s highest-performing senior lawyers,” said Grant. “She had a profound and positive impact on everyone around her, including me.” Lucy and Grant caught up at the end of 2014 and she encouraged 64

“Losing Lucy to suicide lit a fire in me on the topic of depression and suicide, especially in the workplace. And that’s why I started what I did.”

him to speak at a conference she was organising. Grant spoke at that conference, but it was tinged with sadness because a few weeks after their conversation, Lucy committed suicide. “During our chat, she didn’t share her own very real struggle with depression and I didn’t pick up on this,” Grant said. “Lucy left behind a young son and daughter, husband, family, friends and workmates who would miss her terribly.” Grant gets tears in his eyes as he tells me this. Lucy’s death clearly still affects him. “Losing Lucy to suicide lit a fire in me on the topic of depression and suicide, especially in the workplace. And that’s why I started what I did.”

What did he start? Grant started building a mental health network at Spark – a community of workmates who share, help, and support each other in the area of mental health and wellbeing. From small beginnings in late 2017, the mental health network has grown into a company-wide, management-endorsed initiative that is changing workplace culture around mental health.

How did he get it going? Things kicked off at one of Spark’s innovation camps – an annual event at which over 100 people, from within and outside Spark, get together to connect, learn, solve problems, and dream big. The camp is a participant-driven “unconference” format where delegates volunteer to lead sessions on topics of interest or importance to them. Grant put his hand up to facilitate a session on: “How could Spark become New Zealand’s most mentally healthy workplace?” The session was popular. “There weren’t enough seats, but there were plenty of hearts on sleeves, tears, laughs, and encouragement,” Grant said. “There was a growing consensus that we could – that we must – do more to deliver better mental health outcomes for our people.” After the camp Grant and some colleagues created an informal team to do this and Spark’s journey to better workplace mental health began.

▴ Grant Pritchard and Sarah Taylor

Building the case “We came up with a big, hairy, audacious goal: to make Spark New Zealand’s most mentally healthy workplace,” Grant said. “We realised that to make this a reality we couldn’t just take a bottom-up approach, we needed to gain senior management buy-in and approval.” With a steer from the Mental Health Foundation, the team made the case for investing in workplace mental health, focusing on four key benefits: • It’s the right thing to do, • Our people will love it, • It makes good business sense, • We’re required to do it. “By presenting a clear vision, business case, and a game plan, we hoped to make it easy for senior stakeholders to support this initiative,” said Grant. And that’s exactly what happened.

Then what? “Mental health can be a complicated topic. Many organisations understandably worry about doing the wrong thing – so they

do nothing, or next to nothing,” said Grant. “The worst thing you can do is do nothing. It’s OK to start small and learn as you go,” he said. Grant recommends an ongoing process that involves listening, organising, promoting, connecting, and supporting:

Listening “The first thing we did was listen,” said Grant. “We didn’t want to deliver a solution in search of a problem or solve the wrong problems entirely.” Grant and the team developed a short survey in consultation with the Mental Health Foundation. “The survey helped us understand key themes, focus our attention on priority issues and get some quick wins,” he said. Grant points out that in-house lawyers are often well-placed to see how a workplace is doing in the area of mental health as they can be connected to senior management and have a good cross-functional view.

Organising Grant recognises that the Spark community has grown and thrived largely because of a core team who meet regularly to plan and undertake specific initiatives. “Having a small team of mental health evangelists has helped maintain the momentum and reach of our programme,” said Grant. He points out that while it’s essential to co-ordinate with key stakeholders like HR, it’s not necessary for these teams to lead the initiatives and do everything themselves. Grant recommends identifying trusted champions across the organisation and giving them the opportunity to lead and organise.

Promoting To grow and maintain momentum, the team regularly share news, organise speakers, and run other promotions. Spark’s mental health network initially started small with five people. At the time of writing this article, more than 600 staff are involved in the community, which 65

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is one of the largest and most highly-engaged groups within Spark’s corporate social network. Grant recognises that competitions and giveaways may not always be possible or appropriate, but he encourages thought being given to innovative techniques to drive engagement and participation.

Connecting Grant thinks the most important thing they’ve done at Spark is to build community – a safe and supportive space where staff can connect, share and learn about mental health and wellbeing. “We didn’t realise just how powerful the concept of community would be in changing the conversation about mental health at Spark. The level of support, care and candour in this community just blows my mind,” said Grant. “We’re seeing stigma fading, people sharing resources and support, and most importantly taking that first step of seeking help.”

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“I’ve been involved in some pretty big strategic projects during my career but helping deliver better mental health outcomes for my workmates is one of the most meaningful things I have ever done.”

Supporting The team have led a number of initiatives aimed at reducing stigma, raising awareness, and driving a mentally-healthy workplace culture, including: • inviting external speakers like Sir John Kirwan and Mike King to talk about their mental health journeys and share practical advice, • supporting mental health events like Gumboot Friday, Pink Shirt Day and Mental Health Awareness week, • running training on wellness and resilience to help give people practical skills to support their mental health and wellbeing, • organising peer-led lunch-and-learn sessions for staff, • designing posters and other support materials to reduce the barriers to asking for help.

Fitting it in Being a mental health advocate is not part of Grant’s formal role at Spark. Grant and the team undertake the mental health initiatives voluntarily alongside their normal roles, doing a lot of it in their spare time. Given Grant’s busy work and home life and his role on the ILANZ Committee, I wondered how he fits it all in. “Spark and my managers have been very supportive of my mental health advocacy work. Sometimes I can squeeze in a bit around my work day, but I also use my commute time to get things done,” he said. “I’ve been involved in some pretty big strategic projects during my career but helping deliver better mental health outcomes for my workmates is one of the most meaningful things I have ever done.”

What’s next? Grant and the team have only just begun. “We’ve got plenty more listening to do and more ideas to try,” he said. “We’re going to keep innovating and learning in this area.” Grant is encouraging lawyers to think big in the area of workplace mental health. “Now is a good time for us to take a fresh look at how we do mental health at work. Lawyers, particularly in-house lawyers, are uniquely positioned to make real difference in the area of mental health in their workplaces and beyond,” said Grant.

Want to know more? Grant will be speaking at the ILANZ Conference in Dunedin on 9 – 10 May 66

about Spark’s journey to better workplace mental health. He’s keen to inspire other lawyers and will be throwing down a gauntlet: Be the one: start a mental health movement in your workplace. ▪ Grant Pritchard has worked as an in-house lawyer since 2010 in New Zealand and Australia. He recently returned to Spark's legal team after taking on a commercial management role in the procurement team. He is a member of the ILANZ Committee and to his friends and family, he is known as “Gadget guy” or “Mr fix-it” due to his love of all things tech. Sarah Taylor is the co-ordinator of this series, a senior lawyer, and the director of business development at lexvoco, a law firm focused on the success and wellbeing of lawyers. If you’d like to contribute to an article in this series or have a topic you’d like covered, please contact Sarah: sarah@lexvoco.com

Some useful resources: • www.mentalhealth.org.nz • www.depression.org.nz • www.toughtalk.nz • www.wellbeingatthebar. org.uk • www.wellplace.nz • www.ruok.org.au • www.lawsociety.org.nz/ practice-resources/ practising-well If you’re worried about your or someone else’s mental health, reach out to someone you trust, your GP or local mental health provider, employee assistance programme. Lifeline (0800 543 354 or free text HELP to 4357 Need to Talk? (text or call 1737) Suicide Crisis Helpline (0508 82 88 65), or Samaritans (0800 726 666). If you or someone else are in immediate danger, call 111.

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Proactive rather than reactive Reading the signs and acting on them BY ANGHARAD O’FLYNN An accomplished journalist, lawyer, law lecturer and author, Jerome Doraisamy also has first-hand experience with something many lawyers and law students are familiar with: mental illness. A high pressure, highly competitive and sometimes high-profile profession, the pressures of being a lawyer, and studying law, can sometimes lead to mental collapse. Burnout is brought on by work pressures and toxic studying or workplace environments. It commonly manifests in two particular forms of mental illness, depression and anxiety. “I studied law because I got the marks for it. Over time, I determined a career in law to be a great way to serve the community around me,” Jerome says of his choice to go into the profession. While studying a double degree in law and communications at Sydney’s University of Technology, his mental illness came to a head during a music festival. What should have been a fun weekend with friends celebrating the end of exams, instead started an 18-month cycle of crippling anxiety and depression; a breakdown so severe it led to a period of self-admitted hospitalisation. “The signs of burnout, fatigue, elevated stress and anxiety would certainly have been there, but they went unnoticed both by myself and those around me,” says Mr Doraisamy. “Had they been identified, it’s possible I could have avoided the breakdown I suffered, or at least I could have mitigated the severity of my ill-health.”

A toxic culture normalised Testing the emotional, mental and physical limits is common in both law school and in practice. The Pemberton Report revealed that 70% of young lawyers in Aotearoa who participated in the survey cited

moderate or high stress as a problem in their workplace. “There are numerous factors that have a cumulative and negative impact upon the health and wellbeing of law students,” says Jerome. “These factors include increased levels of competitiveness, perfectionism and pessimism among the law student population, voluminous workload, self-medication with alcohol and disordered eating patterns.” Standing alone, these factors may not necessarily give rise to health issues. But when students and junior lawyers are exposed to multiple or all of these factors, it can be hugely detrimental to their mental and physical wellbeing. “These problems exist in every law school in every country,” he says. “They are not unique to any national culture. “It makes me incredibly angry, really, because I would never want any law student to experience what I did. Anxiety and depression can be so debilitating and crippling, and no one should ever have to experience such trauma.” 67

Recovering and restarting

Major impact factors

After nearly two years of working toward his recovery, Jerome began working again. He became a lecturer and journalist – contributing to the Australian legal media website Lawyers Weekly. Teaching at the same university he attended, the University of Technology in Sydney, Jerome observed the toxic cycles he fell victim to occurring in many of his students. “I decided to write The Wellness Doctrines because I saw the same issues, signs and symptoms I suffered manifesting in other law students and young lawyers coming through the ranks. I decided to do something positive and productive to help others avoid going through what I did.” The Wellness Doctrines for Law Students and Young Lawyers provides guidance on managing stress and the pressures of law school, and those challenging first few years as a junior lawyer in the legal profession.*

Throughout his research for the book, Jerome noticed that the competitive atmosphere surrounding grades in both high school and university greatly encourage completeness and this can carry over into their professional performance. One ‘low grade’, for any subject, can be considered a blemish and grade-based rejections can have deleterious effects upon a student’s wellbeing and sense of self-worth. What’s worse is that there is no consistent established standard and firms and universities can apply a subjective view as to what is considered a ‘low grade’. “If their grades are not ‘up to scratch’, so to speak, they will feel like their vocational prospects are diminished. This, of course, ignores the fact that there is so much that one can do with a law degree, as it adds such a broader perspective on other professional industries, from communications to business. “Another part of the problem exacerbating the turmoil students may experience here is that there are so many job opportunities with the law firms that students apply to, creating a bottleneck, and if one does not get an offer, they will feel unworthy,” says Jerome. Firms may also fail to consider the more holistic offerings young people can bring to the table. Extracurricular activities, general knowledge, multi-lingual abilities, social

“It makes me incredibly angry, really, because I would never want any law student to experience what I did [...] no one should ever have to experience such trauma.”

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rain, as it’s not going to ease the downpour. Focus your attention only on those things over which you have direct influence.

What can firms do?

skills and even just a sense of humour and great communication skills are great attributes. An A+ average won’t mean much if the knowledge cannot be communicated.

Reduce the chances of becoming mentally unwell A simple phrase, but identifying the signs of depression in both yourself, and others, and knowing how to ask for help are incredibly important to keep a sense of wellbeing. A chapter within Jerome’s book addresses legal idiosyncrasies and one particular issue is entitled “Learn to be okay with not being number one”, a concept many A-type personalities in the legal profession struggle with. Jerome suggests how to accept the fact that not everyone can be top dog. “Being kind to one’s self, or being self-compassionate, is, of course, easier said than done. But there are a number of things one can do or practise in order to ensure that you are not giving yourself too hard a time.” Jerome has some recommendations: • Allow yourself days in the week where you can do something completely indulgent, such as a Netflix binge or eating glutinous food. It also means switching off from study at certain hours of the day rather than flogging one’s self. • Seeing the bigger picture. If you get a bad mark in your criminal law exam, it doesn’t mean that you’re a failure of a law student, it simply means you got a bad mark in one assessment, in one subject. Don’t conflate issues unnecessarily. • Focus on what you can control, not what you can’t. One cannot influence the weather, and so it serves no purpose to get wound up by the

Mr Doraisamy has taken his personal experiences to law firms and universities in Australia. The core theme of his advocacy at these talks is proactive, individual responsibility. “When I go into law firms and universities, I argue that lawyers and law students must be proactive, rather than reactive, about looking after their health and wellbeing by way of figuring out what solutions and strategies will work best for them and implement those things as non-negotiable aspects of the daily or weekly schedule. “Every person is unique and responds differently to external stimuli, and thus what works for me may not necessarily work for you. As such, it’s incumbent upon all of us to figure out what will be best for us. “If you want to be the best lawyer you can possibly be, you first need to ensure that you are looking after yourself, because unless one is taking a holistic approach to their personal and professional lives, they’ll run the risk of burnout. Law firms need to say that they are looking for lawyers who tick those boxes.” ▪ Jerome’s books (he has also written The Wellness Doctrines for High School Students) are available from the Book Depository and on his own website,  thewellnessdoctrines.com * A s well as the guidance, 10% of the proceeds or each book sold goes to the Minds Count Foundation (formerly the Tristan Jepson Memorial Foundation) which works to decrease the incidence of depression and anxiety among youth through reducing the stigma around mental health. 69

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The Gender Equality Charter What role can the In-house legal community play? BY CAROLINE SIGLEY Diversity is being asked to the party. Inclusion is being asked to dance. – Verna Myers In April 2018, the New Zealand Law Society launched its Gender Equality Charter (Tūtohinga Ira Tangata Ōrite). The Charter is a set of commitments around gender equality aimed at improving the retention and advancement of women in the legal profession. To date 115 workplaces (including law firms, barristers, in-house teams and sole legal counsel), which cover over 2,900 lawyers practising in New Zealand, have signed up to the Charter – this represents over 20% of the legal profession. The Law Society is aiming to get 30% of the legal profession signed up to the Charter by this month – being the one year anniversary of the Charter’s launch. A list of signatories to the Charter can be found on the Law Society website under Law Society Services/ Women in the Legal Profession. Earlier this year, Law Society President, Kathryn Beck said: “109 signatories is a strong result to start the year with, but we really want to “The Charter see the numbers grow significantly. is not about It’s about creating a transparent compliance culture in your workplace, where all but about lawyers, regardless of gender, feel being part of valued and are provided with equal a movement opportunity to grow professionally.” for positive The Charter aims to bring about change, which culture change in the legal profession. aligns with Fazleen Ismail, General Manager, Law our priority of Reform at the Law Society says: “The culture change Charter is not about compliance but in the legal about being part of a movement for profession.” 70

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positive change, which aligns with our priority of culture change in the legal profession.” Signing up to the Charter is the first step. Signatories commit to: • Lead from the top, • Make a plan and take action, • Measure progress. The specific commitments – which are both impactful and achievable – include tackling unconscious bias, encouraging flexible working, closing any gender pay gap and promoting equitable instructions. Signatories agree to meet these commitments over a two year period and report on progress in doing so to the Law Society. The Law Society wants to support the profession in making the decision to sign up to, and meet the commitments of, the Charter – by providing free and practical online tools and resources, sharing success stories and checking in regularly with signatories. By way of practical example, signatories can conduct unconscious bias training using the free NZLS CLE Ltd webinar or by undertaking training their organisation already offers (or plans to offer) to its staff.

Why “just” gender? Gender inequality has been a long standing and visible problem in the workplace. As such the Law Society decided to start with gender inequality but, while the Charter focuses on women in the legal profession, the Charter commitments are relevant to other aspects of diversity and there is no reason why signatories cannot apply the principles of the Charter to addressing inequality and encouraging diversity more broadly. Indeed, commitments under the Charter such as unconscious bias training are expected to address diversity in a much wider sense.

Is the Charter relevant to in-house legal teams? The Charter was designed by the Women’s Advisory Panel – who themselves have wide representation – to be as inclusive as possible and to be equally applicable to all legal professionals. As such, the Charter is open to the whole legal profession and the principles in the Charter are equally relevant to in-house lawyers as they are to law firms, sole practitioners and barristers. Furthermore, the Charter is of benefit not only to teams where they see inequality and inclusion needs to be addressed but equally for teams who feel they comply with all of the principles of the Charter as in signing up they show their support for gender equality and inclusion, their openness to continued improvement and their comfort in being held to account. To date 14 in-house legal teams have signed up to the Charter. Auckland Council, Crown Law, Treasury, Contact Energy and Fonterra led the way as some of the first in-house teams to sign up to the Charter. Of the in-house signatories, a large proportion of them are government legal teams with only a couple of corporates having signed up. It is hoped that we will see more corporate in-house legal teams becoming signatories.

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Fonterra is one of the Charter’s corporate signatories. Andrew Cordner, Director of Legal at Fonterra, says: “Fonterra was an early adopter of the Law Society and the Bar Association’s Gender Equitable Engagement and Instruction Policy and it felt natural for our legal team to take the next step, in line with Fonterra’s broader commitment to gender equity, and sign up to the Charter requirements.” The fact that your corporate has existing programmes around diversity should not prevent corporates signing up. “The Charter’s principles align with Fonterra’s focus and approach to diversity and inclusion, are consistent with Fonterra’s thinking around sustainability in a broader sense, and reflects our core corporate value of Do What’s Right. In meeting some of the Charter commitments (such as unconscious bias training), the Fonterra legal team will look to take advantage of internal corporate programmes and resources in this space” says Mr Cordner.

The wider role in-house legal teams can play In-house legal teams, by signing up to and supporting the Charter, play a vital role in leading culture change in the area of gender (and wider) equality and inclusion, including by:

In-house lawyers as signatories In-house lawyers now make up almost a quarter of the legal profession and so must be part of the body of signatories if significant numbers of lawyers are going to be covered by the Charter.

Encouraging others In-house lawyers and teams can play a role in encouraging law firms, barristers and other in-house legal teams to sign up to the Charter. In-house lawyers can ask the question of firms or barristers they instruct as to whether they intend to sign up to the Charter (and if not, why not) or how they are tracking with meeting their commitments under the Charter. Being a signatory to the Charter could become part of the selection criteria for briefing law firms and barristers or selecting legal panel participants.

Equitable briefing In-house teams can themselves apply the equitable instructions principles of the Charter in selecting the law firms or barristers chambers they brief and paying attention to what lawyers and barristers within such firms/chambers they instruct are doing the work. Equitable briefing principles can be applied to all areas of law and not only to New Zealand firms/ chambers briefed but also to those briefed outside of New Zealand. Catherine Thompson, General Manager, External Relations and General Counsel at Contact says: “When I am thinking about seeking external support or recruiting I am deliberate in my consideration of a diverse team and then look at how to ensure the work will be carried out in an inclusive

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way – so that the diversity has an impact. I believe as an instructing counsel I have the responsibility to influence the growth of an inclusive and diverse profession.”

Wider application of the Charter principles In-house legal teams can play a role in applying the wider principles of the Charter to other teams in their workplaces or right across the business the in-house legal team supports. As set out in the Charter guidelines, Charter signatories may wish to, for example, conduct gender pay audits and encourage and support flexible working for all employees, not just lawyers. The Law Society has seen at least one in-house legal team who intended that the Charter guidelines would be applied right across their workplace. Andrew Cordner said his legal team have also shared the actions they have taken in furthering gender diversity with the wider business unit the legal team sits within (including the adoption of the principles of the Charter and engagement with their external law firms on these issues). He also noted that the team applies the principles of the Charter in a wider sense – for example, ensuring diversity of gender in external speaking panels.

Sharing ways of being In-house lawyers have always generally tended to have a better work/life balance and more widely embrace flexible working than law firms. They also attract and seem to retain female lawyers – with around 62% of in-house lawyers being female. In-house legal teams can encourage, support and show firms how to work towards achieving balance and flexibility as the profession works toward a place where for all legal teams and organisations balance for all lawyers becomes the norm rather than the point of difference. Catherine Thompson says: “Regarding the Charter commitments around encouraging flexible working, our legal team and the wider business already embrace flexibility. It is well established that flexible working options are key to improving inclusion and diversity but there is no ‘one size fits all’ approach to flexibility”. For the Charter to embody change, the momentum of legal workplaces signing up for genuine reasons needs to continue so that the Charter covers as much of the legal profession – both private practice and in-house – as possible in order to assist in bringing about real and sustainable change with a view to achieving true gender equality in the legal community. It is clear that in-house lawyers can play a valuable role in driving culture change in this area. ILANZ applauds those in-house teams who have already signed up to the Charter and encourages others to do the same. ▪ Caroline Sigley  caroline.sigley@bayer.com is Senior Legal Counsel for Bayer and an ILANZ committee member If you would like any further information on the Charter and the process for signing up please refer to the Law Society website or email  womeninlaw@lawsociety.org.nz. 71

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local Bars in the four main centres – so there were four appointees from Wellington and two each from Auckland, Christchurch and Dunedin. He was at pains to point out that Wellington had four because it was the centre of several judicial districts and also the city of the Court of Appeal which sat there three times a year.

A rare honour

Is location still important? Definitely. However, it’s also important to look at the distribution of the pool of potential QCs. Currently, Auckland has 51% of New Zealand’s barristers sole, followed by Wellington (14%), Christchurch (9%), Hamilton (4%), Dunedin (3%) and Tauranga (3%). Auckland has certainly outstripped the other centres since 1908, but it has the most barristers by far. Five Australians have been appointed QC in New Zealand. Three – all from Melbourne – were appointed in 1994 under a reciprocal admission agreement.

Queen’s Counsel in New Zealand BY GEOFF ADLAM

Location on appointment Over 35,000 people have been admitted as lawyers in New Zealand since the beginning of the 20th century. In that time just 317 members of the profession have been appointed Queen’s Counsel. It’s a rare honour. The profession has just completed a round of ceremonies in which 10 new QCs were called to the inner bar after the announcement of their appointments in late November. Let’s not bother about the history of the title in the United Kingdom. In this country, the first appointments were made on 7 June 1907. Late in 1906 the government announced that the “Home Government” had empowered the Governor of New Zealand to confer the title of King’s Counsel. There was the usual vigorous debate in newspapers. While commenting that the new KCs would “no doubt get the principal share of the Government business in the Courts”, the Press then noted that “[a] gentleman well-known in legal circles remarked that the positions of barristers and solicitors in this colony not being separated, the spectacle might be witnessed of an exceedingly eminent KC appearing in the Police Court to defend a battered derelict charged with drunkenness and riotous behaviour, or something else equally sordid and plebian.” (Press, 12 December 1906). We’ll get back to this… Six months later the appointments of 10 King’s Counsel were announced. The appointees had been nominated by Chief Justice Sir Robert Stout from a list of applicants. Stout CJ decided that the appointments needed to recognise the 72

Location

Number

Auckland

138

Wellington

105

Christchurch

Dunedin

Hamilton

Palmerston North

Melbourne

New Plymouth

Napier, Tauranga, Whanganui

Invercargill, Rotorua, Sydney

Queen’s and King’s Counsel This could possibly be the only honour where the title changes according to the gender of the monarch. “Queen’s Counsel” has been conferred on 274 people, with 43 (all male) having been appointed King’s Counsel. It appears that when the gender of the monarch changes the protocol is for an immediate change for every official reference – so new business cards all round some time in the future…

Once were Senior Counsel… Late in 1906 the government announced that the “Home Government” had empowered the Governor of New Zealand to confer the title of King’s Counsel.

In New Zealand, of course, we decided to rename the role “Senior Counsel” in 2006, with the last (at the time) Queen’s Counsel appointments being made in 2007. The Lawyers and Conveyancers Act (Lawyers: Senior Counsel and Queen’s Counsel) Regulations 2008 then came into effect and on 1 October 2008, seven Senior Counsel were appointed (who have since taken the title Queen’s Counsel). The new honour was available to non-barristers. In June 2009 reinstatement of the title Queen’s Counsel was announced, but it was another three years before the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012 came into force on 1 February 2013.

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Appointment rounds After the excitement of 10 appointments in 1907, it was two months short of a century before there were more appointees at any one time. On 14 May 2007, 12 barristers were appointed Queen’s Counsel. The most appointed at any time were 26 in the great “catch-up” round of 2013. Although then Attorney-General Christopher Finlayson and Solicitor-General Michael Heron had been appointed QC on 10 December 2012, it had been five years since an applicant-driven appointment round had occurred. More QCs have been appointed than the 10 in 2018 on just five occasions. In the six years since appointments resumed in December 2012, 80 QCs (25% of the total) have been appointed.

Most appointments at one time Date

Gender

Appointees

The first women appointed Queen’s Counsel were Dame Sian 16 May 2013 26 Elias and Dame Lowell Goddard, 4 June 2014 14 on 4 March 1988. It was a further 2 June 2017 13 seven years – and 34 men – until 14 May 2007 12 another woman attained the rank, with the appointment of Judith 7 June 2016 12 Ablett-Kerr on 20 April 1995. Since 7 June 1907 10 1988 there have been 204 Queen’s 28 Nov 2018 10 Counsel appointed, of whom 39 (19.1%) have been women. Overall, 12.3% of all Queen’s/King’s Counsel appointees since 1907 have been women. The 2018 round was highest for the proportion of women appointees, with five (50% of total). Four women were appointed in 2016, 2014 and 2013. The Crown Law Office has kindly provided details of the gender of applicants since 2002. The information relates to appointment rounds and therefore does not include the appointments of Chris Finlayson QC and Michael Heron QC in December 2012.

Female applicants

Female appointees

Male applicants

Male appointees

Total applicants

Total appointees

Applications since 2002

2002-2008

562

629

2013

100

116

2014

2015

2016

2017

Year

2018

Total

178

918

1165

120

This shows that women have had a higher success rate over the last 13 appointment rounds, with 17.4% of their applications successful, compared with a 9.2% success rate for men and 10.3% for all QCs. Women have made 15.3% of the applications over the time and achieved 25.8% of appointments.

Time to attain the rank At the moment, 131 QCs hold practising certificates (of whom 28 – 21.4% – are women). With about 0.9% of New Zealand’s practising lawyers

(and 9.2% of barristers sole) holding the rank of Queen’s Counsel, it is clear that the honour is hard-earned. Since the round of appointments in 1980, the average time in practice before appointment has been 26.7 years. Women appointed Queen’s Counsel have been in practice for an average of 24.6 years and men for an average of 27.1 years. Of course, “Queen’s Counsel” recognises excellence at the Bar, and the guidelines for appointment note that only barristers sole may be appointed QC. At 1 February 2019, of New Zealand’s 1,417 barristers sole, 564 (40%) were women. If the average time in legal practice before QC appointment is considered, there were 703 barristers at 1 February 2019 who had been in practice for more than the average time of appointment (and 131 of these are already Queen’s Counsel). Just 198 of the barristers in practice for more than 24.6 years were women. The mark for the most years in practice before appointment appears to have been set in 2017, with the special appointment of Victoria University law professor Tony Angelo. Professor Angelo QC was admitted in 1965, 52 years before his appointment. Data on time in practice is held for three-quarters of all QCs appointed. From this group, the shortest time in practice before appointment was 12 years and 4 months, for Dunedin’s Judith Ablett-Kerr QC (appointed on 20 April 1995). New Zealand’s longest-serving Queen’s Counsel still in legal practice is Robert Fisher QC, who was appointed on 1 August 1985. He is followed by James Farmer QC (appointed on 8 May 1986), Alan Galbraith QC (appointed 6 April 1987) and Nigel Hampton QC (appointed 17 May 1989). Sir Ian Barker QC was appointed in 1973. After an illustrious career at the Bar and then on the bench, he now practises as an arbitrator and mediator from Auckland’s Bankside Chambers.

Attorneys-General and Solicitors-General The appointment process starts with the Solicitor-General consulting the New Zealand Law Society and New Zealand Bar Association on the applicants and then giving their views to the Attorney and Chief Justice who then confer. The AttorneyGeneral is responsible for recommending the appointment of QCs to the GovernorGeneral, who makes appointments under 73

PRACTICE

the Royal prerogative. Solicitor-General Una Jagose was one of those appointed in the 2016 round. Since the first KC appointments in 1907 there have been 14 Solicitors-General and all have been appointed KC or QC. The only Solicitor-General missing since New Zealand started appointing Queen’s Counsel is Frederick Fitchett, who was Solicitor-General in 1907, but did not receive the rank. Seven Attorneys-General have become Queen’s Counsel – although Sir Thomas Webb was appointed six days before leaving office in 1954 and Sir Geoffrey Palmer (originally SC) was appointed to the rank in 2008, well after he had left Parliament. Since 1907, 26 different people have acted as Attorney-General. Most have been members of the legal profession but it’s certainly not an automatic transition to QC.

Judicial QCs Of the 317 King’s or Queen’s Counsel appointed in New Zealand, 106 have gone on to become members of the judiciary. Seven of our 10 Chief Justices since 1907 have been King’s or Queen’s Counsel and six QCs have become President of the Court of Appeal. At the moment, there are 23 QCs serving on the bench.

Family connections Three generations of the Cooke family have attained the rank: Justice Philip Cooke KC (appointed 28 January 1936), Sir Robin (Lord) Cooke QC (appointed 25 May 1964) and Justice Francis Cooke QC (appointed 27 July 2004). All three Cookes became QCs relatively early in their career, taking an average of just over 15 years from admission to appointment. There are several instances of two generations, including: Sir Richard Wild CJ (appointed 11 September 1957) and his son John (appointed 26 May 1993); High Court Judge Lance Tompkins (appointed QC 13 May 1958) and his son Sir David Tompkins (appointed in 1974); Sir Ronald Davison CJ (appointed 16 June 1963) and his son Paul (appointed QC 27 May 1996); High Court Judge Sir John White (appointed QC on 14 March 1966) and his son, former Court of Appeal Judge Sir Douglas (now Law Commission President; appointed 4 March 1988); and Sir Geoffrey Palmer (appointed 1 October 2008) and his son Matthew (now a High Court Judge; appointed 4 June 2014). 74

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Seven of our 10 Chief Justices since 1907 have been King’s or Queen’s Counsel and six QCs have become President of the Court of Appeal.

Time as QC The QC rank is held for life. Former Chief Justice Sir Ronald Davison was appointed QC on 16 June 1963 and died on 2 July 2015, 52 years after his appointment. The shortest tenure appears to be that of Christchurch barrister Thomas Joynt KC who was in the first group of KCs appointed on 7 June 1907. He died just under three months later, on 5 September 1907. The shortest time between being appointed to the rank and becoming a judge is the split second between the appointment of Sir Henry Ostler KC as a King’s Counsel and then a Judge of the Supreme (now High) Court on 2 February 1925. Sir Henry had accepted an offer of appointment to the Supreme Court bench in 1924 on condition that he would not be expected to start until 1925 and that he would first be appointed King’s Counsel.

Barristers’ Chambers with most Queen’s Counsel This is believed to be Shortland Chambers in Auckland, with 19 Queen’s Counsel among its 33 full members (and another four QCs as associate members). Bankside Chambers has 16 QCs among its 33 full members (plus another seven QCs as associate members).

Appearances by QCs The sky didn’t fall as prophesied by the legal gentleman in the Press in 1906. With an average of 90 applications per round, it’s clear the honour is seen as worth having. QCs are involved in a relatively high proportion of proceedings in the higher courts. Law Society Wellington Librarian Robin Anderson has analysed proceedings in New Zealand’s senior courts from 2015 up to 12 March 2019. He has found that, over that period, 30.4% of proceedings in the Supreme Court had at least one QC representing a party, with at least one QC in 18.7% of Court of Appeal proceedings and at least one in 12.1% of High Court proceedings.

And back to where it all started Apart from the Queen’s homeland, the rank of Queen’s Counsel has had a stop/start history in several other Commonwealth countries, including our own. England and Wales has an annual “competition” for those who want to become Queen’s Counsel. It has its own website and around 100 or so new Queen’s Counsel emerge each year (108 in 2018, 119 in 2017, and 113 in 2016/17). Of the new appointments in 2018, 30 were women (27.8%). In 2017, 32 women were appointed (26.9%). The 2018 round attracted 240 applications, down 32 on the previous year. In 2018, 54.5% of female and 41.9% of male applicants were successful. Information on LGBT+ applicants is also provided, with nine people in that category applying in 2018 and four successful. There were 30 “ethnic minority” applicants, of whom 13 were successful. The Bar Standards Board which regulates the 16,598 barristers says QCs generally have a minimum of 15 years’ practice before attaining the honour. It says there were 1,695 self-employed QCs in 2018, of whom 83% were male, 16% female and 1% preferred not to say. ▪

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F U T U R E O F L AW

FUTURE OF LAW

Taking law and technology teaching to all students BY LYNDA HAGEN

Undergraduate teaching of law and practice around new information technologies may become mainstreamed due to a major new Law Foundation-funded research project. The $332,000 Technology in Legal Education project intends to create an online toolkit enabling law lecturers to integrate legal technology subjects within core curriculum papers. This could allow second and third-year law students to study emerging areas like artificial intelligence, digitisation of courts, and the use of audio-visual technologies to interview clients and cross-examine witnesses, among other things. Project leader, University of Waikato Law School Dean Wayne Rumbles, says the project, backed by all six law schools, aims to ensure all law students – not just those with a specialty interest – get a grounding in information technology law. “A number of law faculties already have specialist papers. Our aim is to include this more broadly within the curriculum, because otherwise the only students studying it are those who are focused on technology,” he says. “Every student needs to engage in technology; that’s where government, business, law firms and the judiciary are going. It’s no longer a specialist area. It’s part of everyday life.” The two-year project, which gets under way this month, will engage with practitioners and the judiciary to examine the use of technology, as well as to help expand the skills and knowledge base needed by the legal system to propel the economy

and society forward in the modern, technology-driven era. The legal technology project came about through the New Zealand Law Foundation’s Information Law and Policy Project (ILAPP). ILAPP supports several law and technology research studies in areas like digital/ crypto currencies, driverless cars, artificial intelligence, online courts, smart contracts and the regulation of new technology. This project will be the last major ILAPP initiative before the Foundation brings ILAPP’s work to a close this year. The Law Foundation has worked hard with the law faculties and Professor Rumbles on developing this project. The Technology in Legal Education project is among the most important the Foundation has funded in its 26-year history for the profession.

Preparing the next generation This project will create valuable opportunities to build capability for the future of law in New Zealand. If we get this right, the next generation of New Zealand law graduates will be much better prepared for a workplace that is increasingly being taken over by new information technologies. The online toolkit, or portal, will allow law schools to choose how they integrate technology into the curriculum. In criminal law, for example, there could be teaching on the use of technology in evidence gathering or dispute resolution. Lawyers and teachers will be able to access the portal, and a public section will make

journal articles, reports and other material available to anyone. Adapting legal practice to the challenges of technology is a hot topic internationally. A 2016 Deloitte (UK) report, Developing legal talent – stepping into the future law firm, argues that fewer traditional lawyers will be needed as technology adoption increases, although more roles will be required in the transient talent pool. It says traditional lawyers must also be able to understand data, deal with complex technology and manage risk in addition to utilising their traditional knowledge and technical skills. Other overseas examples of law and technology teaching include a compulsory paper on digital lawyering at the University of Cumbria in northern England, which covers the use of audio-visual technology, online dispute resolution and practice management software. A new law school opening in Toronto is considering integrating technology throughout the degree, including running “boot camps” on programme coding for lawyers. Professor Rumbles and his Waikato University-based team will draw on the approaches taken in the US, UK and parts of Asia. He says restrictions on varying the scope of the New Zealand law degree prevents adoption here of a common US model of technology-related teaching, which is effectively a different degree from the mainstream practice degree. “The other option is elective papers, but they are only taken by students who are already wellversed in technology,” he says. “The 75

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LLB course is currently prescribed by the Council of Legal Education – we can’t change that, but we will produce a complementary toolkit. People can take content from that and adapt it for use throughout the existing curriculum.” The project was preceded by a scoping study that reviewed international expertise and practice in legal technology education. Wayne Rumbles says the project will work initially on five compulsory subjects taught in all law schools – contract law, criminal law, land law, public law and the law of torts. It will refine and share IT content that is already being taught. The project team will be led from Waikato by Professor Rumbles, a specialist on law and information technology. There will be input from the other law schools, which strongly support the project.

Input from all law schools University of Auckland Acting Law Dean Warren Swain says legal education needs work in tandem with technological advances. “Lawyers are 76

often at the forefront of technological change … in order for the curriculum to remain relevant to future generations of lawyers, it is important that legal education engages with these advances in technology.” Mark Hickford, Law Dean of Victoria University of Wellington, says: “By taking a collaborative, planned approach to ensuring new technology is appropriately reflected in legal education, we can better equip our graduates to deal with some of today’s most complex and pressing legal issues.” And University of Canterbury Law Dean Ursula Cheer says of the project: “It will generate significant information and resources for New Zealand law schools to use to ensure the teaching of law produces graduates who are future work-ready, adaptable and resilient.” University of Otago Law Dean Jessica Palmer says the project will provide a boost to all New Zealand’s law schools and their students. “This project is an effective way for the six law schools to share ideas and reflect on our own curricula to

ensure that our students are thinking about modern day problems and seeing that the law remains relevant and important,” she says. Another strong supporter is the UK law and technology expert Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales. Lord Thomas will deliver a lecture series in New Zealand later this year under the Law Foundation’s Distinguished Visitor Fellowship programme. He says the project would put New Zealand law schools at the forefront of common law worldwide and bring considerable benefit to the future of the profession. “I have no doubt that it is now necessary to provide students studying law with skills in digital technology,” he says. “It is recognised by many who think about what is necessary for practice of the law in the coming decade that students must be taught the skills necessary not only for them to deal with the way business and day-to-day life is rapidly adopting digital technology, but also the way such technology is changing the practice of law.” The New Zealand Law Society also backs the project, describing the future of law and technology as a priority area. Outgoing President Kathryn Beck praises the project’s inclusion of all law schools. “We know we need to prepare the profession for the technological changes that are already impacting on the practice of law. I note that one of the aims of the project is to ensure that law schools are giving students the skills and critical thinking they need to practise law in an increasingly technologically dependent environment. This will be vital if the legal profession is to keep pace with societal changes in this area.” ▪ For further information on this project and others funded under the Law Foundation ILAPP work programme, visit the Information Law and Policy Project tab on our website:  www.lawfoundation.org.nz

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L AW Y E R S C O M P L A I N T S S E R V I C E

LAWYERS COMPLAINTS SERVICE

Complaints resolution summaries Independent legal advice was needed [Names used in this summary are fictitious] A lawyer, Lightwood, who drafted a trust deed under which she was a beneficiary should have required her parents to take independent legal advice, a lawyers standards committee has said. Lightwood’s parents established a trust to protect the proceeds of the intended sale of a property they owned. Lightwood prepared the trust deed. Lightwood, one of her parents and an accountancy firm’s trustee company were appointed as trustees. Lightwood, her parents and Lightwood’s siblings were named as discretionary beneficiaries. Lightwood’s mother subsequently complained to the Law Society that Lightwood had a conflict of interest in relation to the trust, because she had prepared a trust deed from which she derived a direct benefit. The committee considered that Lightwood had breached rules 5.4 and 5.10 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 5.4 states that “a lawyer must not act or continue to act if there is a conflict or a risk of a conflict between the interest of the lawyer and the interests of a client for whom the lawyer is acting or proposing to act”. With reference to Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016) by Duncan Webb, Kathryn Dalziel and Kerry Cook, the committee noted that where a lawyer with a conflicting interest wishes to act for a client “the obligation [on the lawyer] to disclose fully the interest held is onerous”. The lawyer must “show that the transaction was at arm’s length and the client was fully informed”. Lightwood submitted that while no independent legal advice was provided,

her parents were independently advised by their accountant, “a trusted professional, familiar with trust and estate planning”. However, the committee considered that in the absence of independent legal advice, Lightwood had not discharged the onerous burden of showing that her parents were fully informed of the effects of the trust and that she had therefore breached rule 5.4. In the committee’s view it was unlikely that without independent legal advice Lightwood’s parents would have understood the effect that the trust had on Lightwood’s position. Rule 5.10 states that: “a lawyer must not draft or assist in drafting a provision of a will or other instrument under which the lawyer may take a benefit other than a benefit normally attached to acting in a professional capacity in respect of the will or instrument unless before the execution of the will or instrument, the person concerned has taken independent legal advice”. Although Lightwood had breached both rules, the committee considered the breaches were neither wilful nor reckless. Lightwood had expected that the advice her parents had received from their accountant would have been sufficient to allow her to proceed. Because the breaches were “minor” and there was no issue of public protection, the committee determined the breaches did not amount to unsatisfactory conduct. ▪

Claiming lien over passports unsatisfactory conduct [Names used in this summary are fictitious] If a lawyer is prohibited from retaining the passport of a New Zealand citizen on the basis of an unpaid fee, a foreign client should be treated no differently. This was stated by a lawyers standards committee when considering an own motion investigation into a lawyer, Orlick, who claimed a lien over his client’s passports and the passports of his children. The matter arose when the standards committee was considering a complaint made by a former client of Orlick. The client had engaged Orlick to work on immigration matters. During the course of the work, the client provided Orlick with his passport and the passports of his children. When the client failed to settle Orlick’s fees, Orlick claimed a lien over the client’s file, including the passports. The standards committee noted at the outset that the Passports Act 1992 prohibits liens over New Zealand passports. The committee began by examining the law relating to liens over foreign passports and was satisfied there was no clear legal

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authority in New Zealand addressing the issue. Orlick submitted that in the absence of specific legal authority prohibiting liens over foreign passports, solicitors were entitled to assert such liens. He contended that Parliament expressly omitted foreign passports from the Passports Act 1992 as it intended to allow liens over foreign passports. The committee said it did not accept Orlick’s interpretation. It considered the lack of relevant law in New Zealand did not amount to an endorsement of the practice Orlick had adopted in this case. “It is unlikely that this right to assert a lien over a client’s file would extend to documents which do not belong to a client, such as a passport, which arguably remains the property of the country of issue.” In coming to this view, the committee noted the comments of the High Court in Vallant Hooker & Partners v Proceedings Commissioner [2001] 2 NZLR 357, where the court expressed doubts that a solicitor’s lien could be properly asserted over any passport, as they are not the property of the client. The committee said it was satisfied “that it was inappropriate to treat the holder of a foreign passport as having subordinate rights to a New Zealand passport holder with regards to liens”. As well as holding the client’s passport, Orlick also held the passports of the client’s children “which was clearly inappropriate.” “The children’s passports were not the property of his client and were not provided to [Orlick] as security for his client’s fees.” The committee found unsatisfactory conduct by Orlick, censured him, fined him $2,000 and ordered him to pay $1,000 costs. On review, the Legal Complaints Review Officer upheld the determinations of the standards committee in LCRO 150/2016. “In the circumstances where there was no clear legal authority, and when assessing what lawyers of good standing would find to be acceptable, or what constituted unprofessional conduct, it was reasonable for the committee to take note of what the law in New Zealand provided, both by way of statute and the (albeit obiter) comments made by the court. “These are valid evidential sources of what would be considered to be acceptable, and professional, conduct of lawyers in New Zealand,” the LCRO said. 78

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In holding the passports, Orlick had affected the rights of his client and his client’s children. “That is unacceptable conduct,” the LCRO said. The LCRO considered it was important that the legal profession and the public be made aware of the issue addressed in this case. ▪

KiwiSaver funds paid to clients [Names used in this summary are fictitious] A lawyer who paid KiwiSaver funds directly to her clients, despite giving an undertaking that they would be used as part of a property purchase, was guilty of unsatisfactory conduct, a lawyers standards committee has found. The lawyer, Havisham, acted for Mr Spenlow and his partner, Ms Steerforth, on the purchase of a property. A loan to purchase a property was approved conditionally based upon the KiwiSaver withdrawal. Havisham gave an undertaking to a KiwiSaver scheme manager that “any funds received by me pursuant to the Application (the Funds) will be paid to or as instructed by the vendor as part of the purchase price”. Subsequently, the bank waived the condition for the KiwiSaver funds requirement, and the lending was increased to allow the purchase to proceed. The purpose of that arrangement was to ensure that the settlement proceeded even if the KiwiSaver funds were not received in time for settlement. Settlement was funded by a loan drawdown plus funds received from Mr Spenlow. The KiwiSaver funds remained untouched in a separate KiwiSaver withdrawal ledger in the law firm’s trust account. Five days after settlement, money was paid to Mr Spenlow and Ms Steerforth from the KiwiSaver withdrawal ledger (less a sum deducted for fees and a small amount transferred to a separate ledger for another matter). Havisham argued for a “global approach” and pointed the committee to an email from the mortgage broker, advising that the clients would apply the balance to the

principal of the loan on settlement. She also relied on the personal declarations that Mr Spenlow and Ms Steerforth had given the bank that “the amount withdrawn will be applied solely towards paying the purchase price of the property as settlement”. However, there was no evidence that the funds had, in fact, been used to reduce the mortgage advance. The committee considered the wording of the undertaking given to the KiwiSaver scheme manager was “clear and unambiguous – the funds withdrawn had to be applied to or as instructed by the vendor as part of the purchase price”. “The purpose of the undertaking is to ensure that the KiwiSaver provider complied with the terms of its scheme,” the committee said. “The KiwiSaver provider must be entitled to rely upon a lawyer’s undertaking to ensure that the requirements of the scheme are met. Otherwise it would undermine trust in the legal profession. “[Havisham] did not comply with the clear wording of the undertaking.” The fact that the funds were kept in a separate ledger “made it clear that they had not been applied towards the purchase price at settlement”. As well as making a determination of unsatisfactory conduct, the committee fined Havisham $2,000 and ordered her to pay $1,000 costs. Havisham sought a review of the determination by the Legal Complaints Review Officer (LCRO). In LCRO 42/2018, the LCRO upheld the committee’s determinations and ordered Havisham to pay $1,200 costs. In doing so, the LCRO stressed that there was no option for the degree of flexibility with the KiwiSaver funds that resulted in the funds being paid into the client’s account. Havisham was required to scrupulously adhere to the terms of the undertaking. ▪

Allegations not supported by evidence [Names used in this summary are fictitious] Allegations that a lawyer failed to meet her discovery obligations were not supported

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by evidence on the balance of probabilities, the Legal Complaints Review Officer (LCRO) has found. The lawyer, Corney, acted for a company in an employment dispute with a Ms Mantalini. Ms Mantalini complained that Corney did not fulfil her professional obligations regarding discovery. A lawyers standards committee decided to take no further action on the complaint. The committee said it found that Corney had liaised with the company regarding its discovery obligations and ensured that the company understood and fulfilled those obligations. Ms Mantalini’s lawyer, Mr Tackleton, sought an LCRO review of the decision on her behalf. Mr Tackleton submitted that the committee made an error in making its determination to the point that the determination could not be relied upon. That error was that Corney did not provide any direct statement to the committee herself and instead the committee relied

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on submissions from her counsel as to what advice she provided the company. “Mr [Tackleton]’s submission that the committee’s determination is ‘unreliable’ is puzzling, and is not accepted,” the LCRO said in LCRO 137/2016. The very matters the LCRO was considering were before the Employment Court in a challenge to a determination of the Employment Relations Authority. The following comments by the Chief Judge were “pertinent”: “…the plaintiff ’s allegation that the defendant’s solicitor has failed to discharge her disclosure obligations is not supported by the sort of evidence that the Court would expect to have before it to establish such a serious allegation of professional misconduct …” “…it is necessary to say something also about the serious allegations levelled by the plaintiff and her lawyers against the defendant and, particularly, its solicitor. These are serious allegations of professional failure and misconduct. In spite of that, the evidence to support those allegations

is, at best, meagre and in most instances non-existent. The Court would have been required to have drawn untenable inferences which it had been unprepared to do, given the high standard of proof required to establish such serious allegations of professional misconduct.” “It is disturbing,” the LCRO said, “that Ms [Mantalini] has brought the very same matters before the committee and now pursues this matter on review. The comments made by the Chief Judge are clear and there is no reason why those should not have been accepted as a definitive decision on the allegations. “However, Ms [Mantalini] has now caused [Corney] to incur further costs and expended the resources of the complaints and disciplinary process in continuing to pursue this matter.” As well as confirming the committee’s decision, the LCRO ordered Ms Mantalini to pay costs to Corney in the amount of $500. ▪

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LEGAL INFORMATION

Some recent legal books BY GEOFF ADLAM

procedures in New Zealand relating to criminal matters. In a foreword, Court of Appeal President Stephen Kós says it is a text of real virtue and value, in an area that has long needed a comprehensive guidebook. Thomson Reuters New Zealand Ltd, 978-1-98855258-0, March 2019, paperback and e-book, 968 pages, $210 (excludes GST and postage).

Corporate Law in New Zealand

Fitness to Plead: International and comparative perspectives

EDITED BY SUSAN WATSON AND LYNNE TAYLOR The editors say they provide a comprehensive and critical analysis of legal principles and rules governing New Zealand companies, with a key focus being the rules within the Companies Act 1993 regulating the rights, powers, duties and obligations of companies and their directors, shareholders and creditors. The text also addresses the corporate form in its various contexts and how it is utilised, including co-operatives, not for profits and iwi enterprises. Divided into 11 parts, there are contributions from eight authors – seven academics and one barrister. The law is stated as at 31 October 2018. Thomson Reuters New Zealand Ltd, 978-1-98855375-7, December 2018, paperback and e-book, 1382 pages, $205 (excludes GST and postage).

Criminal Appeals and Reviews in New Zealand BY CHRISTOPHER CORNS AND DOUGLAS EWEN

EDITED BY RONNIE MACKAY AND WARREN BROOKBANKS This collection of essays is edited by Professors Ronnie Mackay from De Montfort University and Warren Brookbanks from Auckland University of Technology. With an introduction and concluding essay by the editors, it has 12 essays which cover the law relating to fitness to plead in a number of jurisdictions. Professor Brookbanks’ contribution is entitled “The Development of Unfitness to Stand Trial in New Zealand”. Other jurisdictions are England and Wales, Scotland, Canada, Australia, the United States, the Netherlands and Italy, and another essay looks at fitness to stand trial under international criminal law. Oxford University Press, 978-0-198788-47-8, September 2018, hardcover, 368 pages, US$75 (excludes postage).

Heath and Whale Insolvency Law in New Zealand, 3rd edition BY PAUL HEATH AND MIKE WHALE

This is a New Zealand version of a text on criminal appeals in Victoria, Australia of which Honorary Associate Law Professor at La Trobe University Christopher Corns is lead author. Professor Corns has written most of the text and Wellington barrister Douglas Ewen has contributed chapters on judicial review in criminal cases and judicial review procedure. The book is aimed at practitioners practising in the trial and appellate jurisdictions. Its purpose is to describe and analyse all appeal and review rights and 80

This has been extracted from the online publication Heath and Whale on Insolvency and states the law as at 20 July 2018. The objective is to cover legal and practical guidance on insolvency and restructuring issues commonly encountered in New Zealand. Commentary is contributed by 14 authors. LexisNexis NZ Ltd, 9780-947514-48-8, December 2018, paperback, 1078 pages, $200 (includes GST and postage).

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Nevill’s Law of Trusts, Wills and Administration, 13th edition BY LINDSAY BREACH Dr Breach has produced the 13th edition of a work which was first published in 1955. The book aims to provide a concise statement of the law relating to trusts, wills and estate administration. The Trusts Bill is now at second reading stage in Parliament and Dr Breach discusses the anticipated changes from this, but notes that additional comment will be needed when it is enacted. The 21 chapters in the latest edition cover all aspects of the law of trusts and wills. The law is stated as at 1 September 2018. LexisNexis NZ Ltd, 978-0-947514-70-9, November 2018, paperback and e-book, 771 pages, $160 (includes GST, excludes postage).

New Zealand Law Dictionary, 9th edition BY PETER SPILLER District Court Judge and Immigration and Protection Tribunal Chair Peter Spiller’s first foray into the legal dictionary world was in 1995 with the fourth edition of GW Hinde’s 1964 New Zealand edition of the English law dictionary, Mozley & Whiteley. Dr Spiller says the intention is to provide a basic understanding of the terms used in New Zealand law, and there are over 5,000 titles in the latest edition. LexisNexis NZ Ltd, 978-0-947514-78-5, February 2019, paperback, 364 pages, $45 (includes GST, excludes postage).

Wells on Animal Law, 2nd edition BY NEIL WELLS AND MARCELO RODRIGUEZ FERRERE The author of the first edition (published in 2011) and contributor to the second, Neil Wells died in 2017. University of Otago senior law lecturer Marcelo Rodriguez Ferrere has completed the work on the new edition. The text is divided into nine parts which look at the various

L E G A L I N F O R M AT I O N

regulatory regimes in areas such as care and control of dogs, animals in agriculture and industry, animals in sport and entertainment and animals in the wild. Other parts provide an overview of the moral status of animals, the development of animal welfare law in New Zealand and veterinary law. The law is stated as at 1 October 2018. Thomson Reuters New Zealand Ltd, 978-1-988553-726, December 2018, paperback and e-book, 961 pages, $190 (excludes GST and postage).

New Zealand Constitution: An analysis in terms of principles BY BRUCE HARRIS University of Auckland emeritus law professor Bruce Harris has set himself the task of explaining and critiquing New Zealand’s unwritten constitution in terms of 16 main principles. Along with the rule of law and respect for the Treaty of Waitangi, he brings together a fascinating set of other principles, such as the principle that Parliament is free to manage itself, the principle that the courts may oversee Government action through judicial review, and the principle that the courts are accountable for the exercise of their powers. Each principle is analysed in terms of the impacts of convention and historical, legislative, judicial and other influences behind its present development. Thomson Reuters New Zealand Ltd, 978-1-98855370-2, December 2018, paperback and e-book, 346 pages $100 (excludes GST and postage).

Legal books This information has been compiled from books which publishers have sent to LawTalk. It does not imply endorsement by the New Zealand Law Society and its objective is to provide information on books which might be of interest to the legal profession. Purchase inquiries must be directed to the appropriate publisher.

CLASSIFIEDS

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Grindley, George William

Will Notices Sell, Russell Frank William Whale, Peter Ronald Brett, Barry Leonard Cheung, Chui Wa (aka Chui Wa So-Cheung) Page, Jason James Laurent, Cheryl Anne Rota, Louisa Virginia Upton, Jonathan Paul Ah Ken, Sakaria Valepo, Fakahula (aka Fakahulahetoa Valepo) Goodall, Margaret Jean

Would any lawyer holding a will for the above-named, late of Lower Hutt, Retired Geologist, who died on 12 February 2019, please contact Sharon Burnet, Gibson Sheat Lawyers:

Page, Jason James Would any lawyer holding a will for the above-named, late of 1/298 Blockhouse Bay Road, Avondale, Auckland, Self Employed, aged 47 years, born on 1 October 1971, please contact Fiona Mathieson, Boyle Mathieson, Solicitors:  fmathieson@bmlaw.co.nz  09 837 6004 or fax 09 837 6005  PO Box 21 640 or DX DP92555

Laurent, Cheryl Anne Would any lawyer holding a will for the above-named, late of Woodend, Tour Guide, born on 12 August 1967, please contact Vicky Brown, Helmore Stewart Lawyers:  vickib@helmores-law.co.nz  03 311 8008

Rota, Louisa Virginia Would any lawyer holding a will for the above-named, late of 3 St Margarets Place, West Harbour, Auckland 0618, born on 02 May 1975, who died on 10 February 2019, please contact Doug Cowan:

Hindman, Jean

 doug@cowan.net.nz  09 320 4616  486 New North Road, Kingsland, Auckland 1021

Grindley, George William

Upton, Jonathan Paul

Darling, Thomas Charles

Would any lawyer holding a will for the above-named, late of Waikanae, Kapiti Coast, born on 16 April 1968, who died on 11 February 2002, please contact Paul Whitmarsh, Whitmarsh Law:

Kwok, Gladys Sell, Vivienne Lucille O’Riley, Dianne Florence (formerly known as Dianne Florence Bolton) Numakura, Hideyuki Wang, Tsung-Min Sell, Russell Frank William Would any lawyer holding a will for the above-named, late of Auckland, Retired Education Administrator, born on 12 June 1931, aged 87 years, who died on 12 June 2018, please contact Brendan McNamara, Prudentia Law:  brendan@prudentia.co.nz  09 912 1985 or fax 09 912 1982  PO Box 340 Shortland Street, Auckland

Whale, Peter Ronald Would any lawyer holding a will for the above-named, late of Northcote Point, Auckland, Businessman, who died on 9 January 2019, please contact Emily Holdaway, Kemps Weir Lawyers:  emily@kempsweir.co.nz  09 526 2560  PO Box 62566, Greenlane, Auckland 1546

Brett, Barry Leonard Would any lawyer holding a will for the above-named, late of 2/527 Weymouth Road, Weymouth, Manukau, who died on 23 January 2019 in Northshore, Auckland, please contact Joanne Savage, Holland Beckett Law:  joanne.savage@hobec.co.nz  07 577 8006 or fax 07 578 8055  Private Bag 12011, Tauranga 3143 or DX HP40014

 paul@wlaw.co.nz  04 550 4053  PO Box 30-852, Lower Hutt 5040

Ah Ken, Sakaria Would any lawyer holding a will for the above-named, late of 20 Levonia Street, Western Springs, Auckland, Retired, who died on 7 February 2018, please contact Susan Tracy, Cairns Slane:  susan.tracy@cairnsslane.co.nz  09 306 7366

Valepo, Fakahula (aka Fakahulahetoa Valepo) Would any lawyer holding a will for the above-named, late of Auckland, who died on 30 December 2018, please contact Jennifer Wickes, Loo & Koo, Solicitors:  jwickes@loo-koo.co.nz  09 520 3866 or fax 09 520 6218  PO Box 99687, Newmarket, Auckland

Goodall, Margaret Jean Would any lawyer holding a will for the abovenamed, late of Waverley, Invercargill, who died on 3 February 2019, please contact Kathryn McBrearty, Duncan Cotterill:  kathryn.mcbrearty@duncancotterill.com  03 379 2430  PO Box 5, Christchurch 8140

Hindman, Jean Would any lawyer holding a will for the above-named, late of 66 Farringdon Street, Glen Innes, Auckland, Barrister, aged 58 years, who died at Glenn Innes, Auckland, on 29 October 2018, please contact Maurice J Burney, Barrister and Solicitor:  maurice@mbjlaw.co.nz  09 527 1311

 sharon.burnet@gibsonsheat.com  04 916 6447 or fax 04 569 4874  Private Bag 31905, Lower Hutt 5040 or DX RP42008

Darling, Thomas Charles Would any lawyer holding a will for the above-named, late of Christchurch, Beneficiary, born on 26 May 1981, who died on 12 January 2019, please contact Lisa Kennedy, Strowan Law:  lisa@strowanlaw.co.nz  03 352 3769  154 Harewood Road, Papanui, Christchurch 8542

Kwok, Gladys Would any lawyer holding a will for the above-named, late of Auckland, Retired, aged 92 years, who died on 10 May 2018, please contact Peter J Tatham, Saunders & Co:  pjt@saunders.co.nz  03 349 5111 or fax 03 349 4876  PO Box 16274, Hornby, Christchurch

Sell, Vivienne Lucille Would any lawyer holding a will for the above-named, late of Auckland, Homemaker, born on 29 June 1930, aged 88 years, who died on 21 October 2018, please contact Brendan McNamara, Prudentia Law:  brendan@prudentia.co.nz  09 912 1985 or fax 09 912 1982  PO Box 340 Shortland Street, Auckland

O’Riley, Dianne Florence (formerly known as Dianne Florence Bolton) Would any lawyer holding a will for the above-named, late of Huntly, Genesis Energy Team Leader, born on 12 August 1963, 00who died on 6 January 2019, please contact Gaylene, Fry Wilson Todd and Co:  gaylene@frywilsontodd.co.nz  07 8287 548  136 Main Street, Huntly

Numakura, Hideyuki Would any lawyer holding a will for the above-named, late of Unsworth Heights, Auckland, Retired Restauranteur, born on 19 July 1962, who died on 1 November 2018, please contact John Morton, Morton Tee & Co:  jmorton@mortontee.co.nz  09 486 1729  PO Box 331133, Takapuna, Auckland 0740 or DX BP66025

Wang, Tsung-Min Would any lawyer holding a will for the above-named, late of Auckland, formerly a Businessman, born on 19 June 1951, aged 67 years, who died on 11 November 2018 at Hualian City, Taiwan, please contact Ben Bong, Wong & Bong Law Office:  ben@wongbong.co.nz  09 535 5886 or fax 09 535 5947  PO Box 51454, Pakuranga, Auckland

Cheung, Chui Wa (aka Chui Wa So-Cheung) Would any lawyer holding a will for the above-named, late of Auckland, Housewife, born on 29 Janaury 1947, who died on 19 December 2018, please contact Arthur Loo, Loo & Koo:  aloo@loo-koo.co.nz  09 520 3866 or fax 09 520 6218  PO Box 99687, Newmarket, Auckland or DX CP31056

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CLASSIFIEDS

L AW YER REQUIRED We are looking for a lawyer with 3+ years experience. Experience in Trust work and preferably estate administration is an advantage, however we will provide training as required.

NOTICE OF JUDICIAL VACANCY

The role will also include property, conveyancing and commercial/ business work, so if you are looking for an interesting, diverse and stimulating role we would love to hear from you. There is the possibility of future partnership opportunities for the right person.

Lord Chief Justice — Kingdom of Tonga

We are a small, busy practice with a great work environment and embrace a positive, humorous and supportive culture.

JUDICIAL APPOINTMENTS AND DISCIPLINE PANEL

The Judicial Appointments and Discipline Panel, established by the Constitution of the Kingdom of Tonga, makes recommendations to the King in Privy Council on the appointment of eminently qualified persons to the Judiciary. The Panel hereby notifies that a vacancy is expected in December 2019 for the position of Lord Chief Justice. Expressions of interest should be sent by e-mail to Ms. Rosamond Bing, Clerk (Judicial Appointments and Discipline Panel) at rosamond.c.bing@gmail. com to be received in Tonga no later than 12 Noon on Tuesday, 30 April 2019. All expressions of interest will be treated in the strictest confidence.

To apply please email your cover letter and resume to jrainey@ northendlaw.co.nz

Advertise with us! LAWTALK

OUR WEBSITES

LAWPOINTS

Contact our Advertising Co-ordinator:

04 463 2905 advertising@lawsociety.org.nz

Legal visionaries will tell you the writing is on the wall law firms need to change their approach to the practice of law Law firms need to: Embrace technology From the day we started, we employed IT Staff, many clients only instructed us electronically and for nine years now, one bank has deployed a unique web signing technology program that our IT team helped develop. Understand risk management A form of insurance that we introduced was referred to by the late George Hinde in 2003 as one of the three standout developments in land law over the last 50 years. Today we give every client purchasing a home a policy to help them manage their property law risk and us our professional indemnity risk.

Are you ready to change?

Join our team

If you share our vision we’d like to talk to you about joining us full time as a solicitor in our Auckland office. Ideally, you will have: - At least 2 or more years post admission experience; and - Practice and be interested in any or all of property law, banking and finance, private client work (trusts, wills and estates) and/or litigation and dispute resolution.

Write on our wall – send us your CV and tell us about yourself at: thefuture@sandersonweir.com Level 22, Huawei Centre, 120 Albert Street, Auckland www.sandersonweir.com

CLASSIFIEDS

Due to an increasing workload we are looking for motivated and enthusiastic team members for our busy general practice in beautiful Taupo. We have a friendly and capable team with relaxed offices, affordable housing, no parking hassles, zero traffic worries and access to a wonderful lifestyle. A competitive remuneration package is available depending on experience, including an attractive bonus structure. You can drive these roles as hard as you like – there are good career prospects for the right applicants. Senior/Intermediate Commercial Solicitor or Legal Executive An experienced commercial lawyer or legal executive, working primarily in Property, including Conveyancing, Subdivisions, Trusts, Business Sales and Purchases, Leasing, Company Law and General Commercial Practice. Ideally you will have at least 3 years PQE but all applications may be considered. Family Lawyer A Family Litigator with at least 2 years PQE and Lead Provider status. You will be working with a primary focus on Family Matters including Protection Orders, Care of Children Act Proceedings, Oranga Tamariki Advocacy and Relationship Property.

Call Tom or Kate Mounsey for a confidential chat (07 377 8464 or 0212 804 259) Applications to ldunn@mmclaw.co.nz with accompanying CV should be made by 10 April 2019

Experienced Crown Prosecutor/Litigator Wellington Luke Cunningham Clere is a medium sized law firm based in Wellington’s CBD. As the Wellington Crown Solicitor’s office we undertake criminal prosecutions, regulatory enforcement and litigation for the Crown. We have expanding civil litigation, public law, and professional disciplinary practices acting for a wide range of Crown and other entities. We are seeking to appoint an experienced criminal lawyer to work across our client base. You will be able to immediately pick up a trial workload and will ideally have experience in some of our other practice areas. Strong written and oral communication skills are essential as is sound decision making on legal and procedural matters. You will be conscientious and resilient, be able to work with minimal supervision and able to manage your workload effectively. We are looking for someone who can either immediately or quickly develop into taking an active role in assisting Partners to manage key clients. This includes: allocating and managing files; supervising and reviewing work; liaising directly with clients; monthly client reporting; presenting at seminars; etc.

Applications should be e-mailed to bmp@lcc.co.nz before 28 April 2019 and include a covering letter, CV and academic transcript. No agencies.

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REFEREES, DISPUTES TRIBUNAL HAMILTON There will shortly be a process for the appointment of Referees in the Hamilton Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as Referee. Nominations must be sent in writing or by email. They must contain the name, address, telephone number and email address of both the nominator and the person being nominated. Once a nomination has been received, the person who is nominated will be sent an application pack with details relating to the position and how to apply for it. Nominations are to be made to the Principal Disputes Referee, DX SX11159, Wellington, Ph: (04) 462 6695, or email Kelly-Lea.Brown@justice.govt.nz Nominations must be received by this office no later than 12 noon on Monday 15 April 2019.

REFEREES, DISPUTES TRIBUNAL INVERCARGILL There will shortly be a process for the appointment of Referees in the Invercargill Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as Referee. Nominations must be sent in writing or by email. They must contain the name, address, telephone number and email address of both the nominator and the person being nominated. Once a nomination has been received, the person who is nominated will be sent an application pack with details relating to the position and how to apply for it. Nominations are to be made to the Principal Disputes Referee, DX SX11159, Wellington, Ph: (04) 462 6695, or email Kelly-Lea.Brown@justice.govt.nz Nominations must be received by this office no later than 12 noon on Monday 22 April 2019.

CPD Calendar PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Chris Browne Julie Anne Kincade

In many cases, expert evidence can be pivotal to the determination of key issues and counsel will invariably be confronted with the task of both working with and challenging the evidence of expert witnesses. This seminar will provide you with an overview of the law, practical guidance on dealing effectively with expert witnesses and incorporating expert evidence as part of a robust overall litigation strategy.

Auckland

11 Apr

Live Web Stream

11 Apr

Roderick Joyce QSO QC Sandra Grant Nikki Pender Paul Radich QC

This workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. You will learn how to handle a single file from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation files, competently and confidently.

Dunedin

13-14 May*

Auckland 1

27-28 May*

Wellington

21-22 Oct**

Auckland 2

4-5 Nov**

Wellington

23-27 Jun

The law has an array of approaches to deal with deception; some are somewhat arcane, while others have developed as simple and effective ways to address the issues. It’s topical and continually relevant and pervades all areas of legal practice. The idea of this Masterclass is to delve into some key areas of interest – pitfalls when guiding a commercial deal from sales pitch to signature; understanding and identifying the best way to plead a claim; keeping an eye on the outcome when the case finishes. Importantly, we will also be dealing with the perennial issues and pitfalls which arise in advertising, and hearing from the Commerce Commission.

Wellington

12 Jun

Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is made up of several parts.

Various

Apr-Oct

A practical two-day workshop covering the fundamentals of being an effective criminal lawyer. This workshop will benefit all practitioners wanting to be appointed to level one of the criminal legal aid list, and those recently appointed to level one. Note: Douglas Wilson Scholarship applications close for Auckland 31 July (The application deadline for Wellington has now closed).

Wellington

6-7 May

Auckland

2-3 Sep

This highly regarded residential week-long advocacy training course is open to applicants with at least two years’ litigation experience. It’s hard work, great fun and most participants say it’s the most effective value-for-money course they’ve ever attended!

Christchurch

CIVIL LITIGATION AND EMPLOYMENT EXPERT WITNESS – IMPORTANT ISSUES

2 CPD hours

INTRODUCTION TO CIVIL LITIGATION SKILLS

9 CPD hours

Note: Douglas Wilson Scholarship applications close 15 April* and 23 Sept**. ADVANCED LITIGATION SKILLS PROGRAMME – FOR CRIMINAL AND CIVIL LITIGATORS

32 CPD hours

Director: Judith Ablett-Kerr ONZM QC Deputy Director: Paul David QC

Aimed at practitioners with at least 6-10 years’ litigation experience (either criminal or civil) this five-day nonresidential programme follows the same methods that have proved so successful in the basic level NZLS CLE Litigation Skills Programme. Note: Course applications and Douglas Wilson Scholarship applications close 8 May.

COMPANY, COMMERCIAL AND TAX DECEPTION IN COMMERCIAL DEALINGS MASTERCLASS

Chair: Bob Hollyman QC

6 CPD hours

Live Web Stream

12 Jun

Auckland

13 Jun

CRIMINAL DUTY LAWYER TRAINING PROGRAMME

Local Presenters

11* CPD hours INTRODUCTION TO CRIMINAL LAW PRACTICE

*CPD hours may vary, see website Brett Crowley

13 CPD hours

LITIGATION SKILLS PROGRAMME

55 CPD hours

Director: Belinda Sellars QC Deputy Director: James Rapley QC

25-31 Aug

Course applications and Doulgas Wilson Scholarship applications close 5pm Wednesday 5 June.

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz

Online registration and payment can be made at: www.lawyerseducation.co.nz

PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Jennie Hawker Simon Jefferson QC

Section 21 agreements are common place and often require a large degree of input, knowledge and “crystal ball gazing” on the part of practitioners who want to ensure that the agreements withstand the test of time. This presentation is intended not only to update practitioners on the recent case law but to also consider and address the “grey areas” we all encounter when drafting living agreements (s 21) and settlement agreements (s 21A). It will additionally include reference to the Law Commission and its commentary on these agreements

Auckland

16 Apr

Live Web Stream

16 Apr

Chair: Kathryn Lellman

The mental capacity of a client to instruct a lawyer is fundamental to every area of legal practice. This practical forum will provide a comprehensive overview of capacity concepts, guidance on best practice for lawyers from legal and medical experts, and analysis of case studies.

Auckland

10 Jun

Live Web Stream

10 Jun

Simon Hamilton Harshad Shiba

What are your obligations as a practitioner when you have been asked to act for more than one client in a property transaction? First, the presenters will outline the key fiduciary and statutory obligations on property lawyers in these situations, and also offer practical suggestions that will help enable you to avoid conflicts or complaints. The presenters will then outline the procedure that solicitors should follow, and the obligations on them, in the event of a claim or complaint.

Auckland

2 May

Live Web Stream

2 May

Chair: Greg Kelly

Trust lawyers and trustees face unprecedented changes: the Justice Committee of Parliament has recommended that a new Trusts Bill be passed; the Law Commission has proposed significant changes to the current “trust busting” provisions in family law; the drafting of trust documents and changes to existing trusts will come under scrutiny; the Family Court will have greater jurisdiction over trusts. If you work in the areas of trusts, estates, property and relationship property, you will need to understand these changes.

Wellington

A comprehensive round-up of recent cases and developments with an eye to the future – what lies ahead in human rights law?

Wellington

FAMILY SECTION 21 AGREEMENTS – CRYSTAL BALL GAZING?

2 CPD hours

MENTAL CAPACITY FORUM

6 CPD hours

PROPERTY AND TRUSTS PROPERTY – CONFLICT OF INTEREST

2 CPD hours

TRUSTS CONFERENCE 2019

13 CPD hours

17-18 Jun

Live Web Stream

17-18 Jun

Auckland

24-25 Jun

PUBLIC HUMAN RIGHTS LAW – NEW FRONTIERS

Chair: Paul Rishworth QC

7 May

Live Web Stream

7 May

Auckland

8 May

New Zealand’s premier Education Law Conference will once again focus on the key issues facing educationalists, as well as practitioners who advise Boards of Trustees, principals, or parents.

Wellington

6 May

Live Web Stream

6 May

Auckland

7 May

Lawyers who practice in the Elder Law area are today faced with legal requirements and complexities which were not evident a generation ago. This intensive will provide up-todate practical advice on current issues and challenges.

Wellington

An invitation from the Chief District Court Judge and the Principal Family Court Judge to hear what it takes to be a modern judge. This seminar will help you determine whether this role might be for you, and whether your current career settings are right should you wish to progress on to the Bench.

6.5 CPD hours

OTHER PRACTICE AREAS EDUCATION LAW CONFERENCE 2019

Chair: Gretchen Stone

6.5 CPD hours ELDER LAW INTENSIVE 2019

Chair: Mary Joy Simpson

6 CPD hours

29 May

Live Web Stream

29 May

Auckland

30 May

Auckland

15 Apr

Dunedin

17 Apr

PRACTICE AND PROFESSIONAL SKILLS A WINDOW INTO BECOMING A DISTRICT COURT AND/OR FAMILY COURT JUDGE

1.25 CPD hours

Chief District Court Judge Doogue Principal Family Court Judge Moran

See full invitation to attend at: www.lawyerseducation.co.nz

To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111

Online registration and payment can be made at: www.lawyerseducation.co.nz

PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Philip Strang

How do you keep a trust account in good order? This practical training is for new trust accounting staff, legal executives, legal secretaries and office managers.

Various

Apr-Sep

Philip Strang

Under the Financial Assurance Scheme all practices operating a trust account must appoint a qualified trust account supervisor. A candidate must be a lawyer and must pass the NZLS trust account supervisor assessments, which take place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you prepare for the assessments.

Auckland 1

Culture is everything. It goes far beyond the company values and mission we espouse on our websites, letterheads and to our clients. It is what we say and do when we think others are not watching or listening. Essentially it is about how we treat each other, how we communicate with each other and our clients. This workshop has limited numbers and will fill up fast.

Wellington

29 Apr

Auckland

30 Apr

A practical two-day workshop focused on the professionals in the mediation process, whether that is as advocates or mediators. You will learn new skills and also enhance and adapt skills you currently possess so that you can improve your representation of parties at mediation and your knowledge of the role of a mediator. It can lead, if you wish, to a second workshop focused on training to be a mediator.

Auckland

3-4 May

Wellington

26-27 Jul

PRACTICE AND PROFESSIONAL SKILLS TRUST ACCOUNT ADMINISTRATORS

4 CPD hours TRUST ACCOUNT SUPERVISOR TRAINING PROGRAMME

7.5 CPD hours

EFFECTING CULTURE CHANGE

Rabia Siddique

6 CPD hours

MEDIATION PRINCIPLES AND PRACTICE

13 CPD hours

Virginia Goldblatt Geoff Sharp David Patten Adam Lewis

Hamilton Wellington

16 Apr 18 Jul 24 Sep

Auckland 2

5 Nov

Christchurch

12 Nov

Note: Douglas Wilson Scholarship applications close for Wellington 26 June. STEPPING UP – FOUNDATION FOR PRACTISING ON OWN ACCOUNT 2019

Director: Warwick Deuchrass

All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete this course.

Christchurch

9-11 May

Auckland 2

25-27 Jul

Wellington

12-14 Sep

Auckland 3

21-23 Nov

18.5 CPD hours KUA AO TE RĀ: MĀORI CULTURAL DEVELOPMENT FOR LAWYERS

Alana Thomas Apimaera Thomas

This one-day workshop is specifically tailored for lawyers and is designed to enhance your ability to connect with Māori who you may be working with as clients, stakeholders, partners, or in another capacity. Experienced facilitators will guide you through an interactive day as you consider the who, why and the how to successfully engage with Māori in the law.

Wellington

24 Jun

Auckland

25 Jun

Chair: Susan Hornsby-Geluk

Are you the best employer you can be? Is your workplace a safe, positive and sustainable one? Are you attracting and retaining the staff you want? Can your law firm adapt to meet the challenges of the future? This forum brings together a group of highly experienced and successful practitioners who have grown successful practices and have dealt with many challenges. The presenters will openly discuss the issues and share their experience and practical advice to help you be the best employer that you can be.

Wellington

24 Jun

Live Web Stream

24 Jun

Auckland

25 Jun

6 CPD hours CREATING GREAT WORKPLACES FOR LAWYERS FORUM

6 CPD hours

To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111

LIFESTYLE

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LIFESTYLE

A New Zealand Legal Crossword SET BY MĀYĀ

27 M

I S

U S

U R

O I

S M

A P

R A

W A

L O

R L

I N

G W

O M

U S

C U

U K

C M

H S

I A

D H

A W A

L K

U O

J F

T O

C O

A E

G C

O B

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R D

Across

Down

1 Whale's leap showing potential

1 Profligate U-turn by crackpot

for a common law tort (6,2,7) 9 I totally agree - have a pint! (3,4) 10 Meet with X re organisation of Z, for example (7) 11 Admirer of Malcolm X, but

possibly not of Edmonds baking

powder? (4,5)

12 Early version of cask beer, say (5)

Solution to February 2019 crossword Across 1. Major Tom, 5. Hawaii, 9. Siroccos, 10. Justus, 12. Sirens, 13. Messiahs,

13 Rebus, for example, returned regarding a minor concession (5) 14 Young Maori called at a hotel unit (9) 16 Big Eddy Fish turned by Inspector Morse... (9)

15. Cooking wine, 19. Emporer

20 Add electric plant (5)

Nero, 22. Pirogues, 24. Remiss,

22 It's thrown out after tea gets

26. Wallah, 27. May Queen, 28. Royals, 29. Dukedoms

very loud (5) 24 Lay to rest clever software the French rejected, among other

Down 1. Misuse, 2. Jurors, 3. Racing car, 4. Oboe, 6. Abuts, 7. Antiacid, 8. Insisted, 11. Felines, 14. Courted, 16. Grotesque, 17. Sea power, 18. Spirally, 20. Cicero, 21. Usings, 23. Grail

things (5,4) 25 Experience supporting the start of Monopoly (7) 26 Political leader doing what 11 didn't - applying leverage (7) 27 Moral guidance from X? (3,12)

might end here? (10,5) 2 What 11 did during a function, standing up for convexity of a column (7) 3 Number one secretly reducing the odds to make an unethical agreement (9) 4 Tenderer a short distance away, about three times (7) 5 Continue newspaper coverage of... (5,2) 6 ...Otago university's little bear revealed! (5) 7 Not quite like sliced fruit and flower arranging (7) 8 Currently, formal accusations are relayed by the conductor (8,7) 15 Bass drum I beat - it's all a bit ridiculous! (9) 17 Musicians on leave? (7) 18 How like a god to clue "Die!" (7) 19 Attack on TV, or vice versa? (3,4) 21 XXXXXXXXXXX plant a small charge (7) 23 TV programme would be another if I had anything to do with it (5)

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LIFESTYLE

The Irish R.M. Justice a mere sideline in historical magistrates series BY CRAIG STEPHEN This semi-comical television series, a joint IrishBritish production, was as much about class and servitude as it was about the serving of justice. The R.M. in the title refers to the Resident Magistrates which the United Kingdom (which at the time included all of Ireland) sent out to the colonies to sort out those dashed unruly locals and provide a stiff upper lip type civility. They were also present in New Zealand, first established in 1846, with the R.M.s deciding on a limited range of criminal cases and civil claims. In 1893 they became known simply as magistrates and their responsibility and authority was extended. The Irish R.M. of the series is one Major Sinclair Yeates, played by Peter Bowles, who basically does what he always does by playing a genial British establishment figure. Yeates is a retired army officer who has been dispatched as resident magistrate to the small town of Skebawn. The first series is set at the turn of the 19th/20th centuries, well over a decade before the Easter Uprising. In fact, these stories relate to a period of relative stability and peace on the island following the political tensions and violence of the Land War (1880–92). In the opening episode Yeates encounters his landlord Flurry Knox and finds out exactly what mischief he and his associates can get up to. On his first day in court, after being conned into giving only a caution to a serial offender for a minor offence, a chastened Yeates sticks Flurry’s fox hunting whipper-in in jail for a week for Saturday night fisticuffs, much to Knox’s chagrin. The three series, which ran from 1983 to 1985, were based on the books of Edith Somerville, an Irish novelist and feminist, and Violet Martin, who wrote under the pseudonym Martin Ross. Interestingly, it appears that Somerville was an avowed Irish nationalist while Martin was a committed unionist. That didn’t stop them from collaborating on more than a dozen books, including three that spawned the TV series many decades later – Some Experiences of an Irish R.M., Further Experiences of an Irish R.M. and In Mr Knox’s Country.

The basis of the episodes are that Major Sinclair Yeates attempts to be a reasonable man in a society that relishes devilment. Two women feature prominently, his wife Philippa, a measure of understanding and support, and his housekeeper Mrs Cadogan, a defender of the home against outsiders. Sinclair has also developed a close friendship with Flurry Knox, who has an unerring instinct for getting what he wants with just a wink and a smile. He is one of several Irish stereotypes, but the film-makers also poke fun at the English, including one crass upper class twit who provides some jolly hockey sticks type humour. In one episode in the second series, Yeates must decide what to do with salmon poachers, and the village’s new dispensary doctor, who turns out to be one of Flurry`s old Trinity College pals, cons the Major into breaking into the local butcher shop to ‘’borrow’’ some meat. In a subsequent episode, taking its cue from Whisky Galore, the book and film about a real-life grounding of a ship full of whisky on a remote Scottish island, a ship goes aground in a winter storm, spilling its cargo – barrels of rum – all over a beach, resulting in contraband caches. ‘’The real tragedy,’’ says a spectator in the magistrate`s chambers, ‘’is that so much good liquor was wasted on the stones’’. Meanwhile, weaved into this tale of comical petty crime, is a sub-plot about Knox being challenged to a polo game by a visiting maharjah and his compatriots. As The Clean and English fox hunters may once have cried: Tally Ho! All three series – 18 episodes – of the The Irish R.M. are available on a boxset DVD. ▪ 89

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A judgment from Heaven BY ANGEL OF JUDGMENT Continuing our tales from long ago theme … The author of this does not want to be identified. It’s not in the latest New Zealand Law Dictionary, but “beak” was once slang for a magistrate.

About 40 years ago a new young “beak” arrived in a prosperous regional city. He held a private pilot’s licence and was determined to use his flying skills to make his visits to outlying courts on his busy circuit a quick and safe experience. He had a young family and wanted to be away from home for as short a time as possible. The country roads had lots of heavy traffic and were dangerous as he was soon to learn from the number of people who appeared before him to answer to serious traffic offences, many of which involved death or injury to other road users. Flying to the circuit courts meant less travel time and was considerably safer than driving in heavy traffic on busy main roads which had many narrow bridges. The Justice Department was not

prepared to pay for the hire of an aircraft but would only reimburse the normal mileage for a motor vehicle to travel to the circuit courts. This suited the “beak” because in those days an aircraft could be hired from the aero club for about $15 per hour (while the aircraft was in the air) and the longest flight to a circuit court took less than 1 hour. A typical flight consisted of arriving at the aero club at about 8am. A pre-flight inspection of the aircraft, checking fuel, filing a flight plan and take off at about 8:30am. A 20-minute flight to the airfield at a distant circuit town and an inspection to see how many sheep there were on the airfield and where they were located. A swoop down the main runway to clear the sheep, a steep turn and landing. Park the aircraft and be picked up by the court

Notable Quotes

bailiff or the local police sergeant (who was the President of the local aero club) and be sitting in court by 9:30am. After court it was back to the airfield, a quick take off (after again clearing the sheep from the runway) and in 20 minutes back to home base, sign off the aircraft and home to wife and family.

Clag day On a memorable occasion the “beak” noticed out the window of the courthouse where he was sitting in the most distant part of his circuit, that the weather appeared to be deteriorating. A “front” was moving in from the sea and he was anxious that he would not be able to fly home but would be stranded in the “wop wops”. He telephoned the aero club at his home base and was assured that the

❝ There has to be no hint of any outside inquiries, or inquiries made online, and for that reason the whole trial has been compromised.” ❞ — Judge Chris Field in Christchurch District Court, who dismissed a jury in a criminal trial after learning that a juror had accessed Facebook for information on the defendant.

❝ I can’t repeat the language, it was very robust, but when everyone was frantically discussing the ethical points, Lindy’s advice was, ‘well, you know, you just deal with the client. You tell him where he can get off and if you’re at a table with a fork handy, well you stick it in his hand’. ❞ — Adelaide barrister Frances Nelson QC provides ABC Radio with some background on rumours about what Lindy Powell QC actually said when asked at a law conference how young female lawyers should best deal with sexual harassment by male clients.

❝ I have not quit. I do not quit. ❞ — Australian barrister Robert Richter QC, who was the trial lawyer for Cardinal George Pell, found guilty of child abuse. After media reports that Mr Richter had quit, his chambers said he did not have sufficient objectivity to lead the appeal but would be part of the defence team.

❝ I am ashamed because I know what Mr Trump is. He is a racist. He is a conman. He is a cheat. ❞ — US President Donald Trump’s former lawyer Michael Cohen starts his testimony to the House of Congress’s oversight committee. Mr Cohen is a former lawyer in another way: he was disbarred on 27 February.

weather was fine there and that if he left immediately, he would have no problems reaching home. A quick trip in the police car to the local airfield (in a farmer’s paddock) to pick up the aircraft and the “beak” was airborne. He was flying by VFR (visual flight rules) which meant he had to be able to see the ground and could not fly in or above clouds. Dark gray/black clouds (which pilots call clag) were rolling in from the sea and it looked as though they would block the flight path north in a very short time. What did the “good book flying manual” say – “if in doubt do not proceed but turn back to your departure point”. OK, do a 180 degree turn – what is all that clag that has come in behind me? I can’t see where I have just come from!! OK, another 180 degree turn and see if we can make it north before the clag ahead rolls in. It is getting very close and a quick look at the navigation chart shows a valley running north/south

in the general direction of home. Being gradually pushed by the clag further and further towards the valley it was not long before the aircraft was flying low up the valley with the clag rolling in overhead. Those gorse bushes look awfully close – so do the fence posts. After about 20 minutes of hedge hopping with the clag closing overhead the “beak” radioed home base to say that he was at 1,000 feet over a small seaside township and that the clag was pretty thick, but he would turn down the coast towards home. At that very moment another club aircraft radioed that it was at 1,000 feet inbound from Auckland over the same seaside township. The other aircraft suddenly appeared out of the clag about 100 yards ahead flying at right angles to the “beak’s” plane. The “beak” immediately turned and followed the other faster aircraft. The clag was still closing in from the sea and was

❝ I have never in my 21 years as a criminal defence lawyer – and that’s all I do – I have never seen such a minor case engender such disproportionate attention. It’s a big deal to my client, but small potatoes in the grand scheme of things.” ❞ — Connecticut attorney John Thygerson, who defended driver Jason Stiber who was charged with distracted driving. The ticketing police officer said Mr Stiber was talking into a cellphone. Mr Stiber said he was eating a hash brown.

❝ [462] … I am conscious that this judgment is likely to be appealed whatever the ultimate outcome, perhaps even through to the Court that Mainzeal built.”.❞ — Justice Cooke contemplates the possibility of a Supreme Court finish to his comprehensive 178-page decision in Mainzeal Property and Construction Ltd (in liquidation) v Yan and Others [2019] NZHC 255.

forcing the aircraft to fly lower and lower. The “beak” was navigating by watching the seas break on the shore because he knew that if he followed the coast he would arrive at his home base aerodrome. Flying along the coast at cliff top height was an unnerving experience in itself but suddenly as if by magic, the aircraft flew out of the clag into bright sunshine. A regulation downwind approach, turn into wind, land the aircraft and report to the tower. “Where have you been and how come your suit is soaked in sweat?” I must get some instrument flying experience said the “beak”. A smart lawyer in one of the circuit courts once called the “beak” the “angel of judgment”. He said it described the “beak” arriving from the clouds, hearing the cases, delivering judgments and disappearing back into the clouds at the end of the sitting day. Probably an apt description. ▪

❝ People think judicial discretion is some sort of trick … it gives [judges] the opportunity to do whatever they like. But in real life it’s not like that. We’re quite constrained by the law … It’s not like you can jump in and have a free kick. ❞ — Retired judge and chair of the Queensland Sentencing Advisory Council John Robertson, commenting on a private member’s bill which includes a mandatory minimum sentence for violence towards or neglect of children which causes death. ❝ People around Harvey are saying he’s desperately trying to hire a ‘skirt’ – their term – for the team as he feels it will soften his image.” ❞ — US gossip columnist Richard Johnson quotes an unidentified “insider” on Mr Weinstein’s so far unsuccessful search for a woman lawyer. 91

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